COS from L1 to H1 while L1 extn is in process

[RameshR]

Hi,
I am currently in U.S working for employer A thru L1B visa. But my visa expired in July 2013 and employer A has applied for extension. I got an RFE yesterday. I need to respond to RFE before December 2013.
I have a H1 petition that was processed earlier in 2008 in Consular Process, it was counted in-cap. It was never stamped or used. The validity is from 2008 to 2011. I heard that I will be able to use this expired petition and process it as cap exempt petition and use it to switch from L1 to H1.
Employer B is willing to process this expired petition for me.
But is it possible to do a change of status to H1 when my L1 extension is still in progress and has received RFE?
How challenging it would be to move to H1 (considering USCIS scrutiny) if the current L1 Extn is under RFE
Appreciate if some one could provide answer as quickly as possible. Thank you, appreciate your help.

Ramesh

[raghvi]

Hi,
I am currently in U.S working for employer A thru L1B visa. But my visa expired in July 2013 and employer A has applied for extension. I got an RFE yesterday. I need to respond to RFE before December 2013.
I have a H1 petition that was processed earlier in 2008 in Consular Process, it was counted in-cap. It was never stamped or used. The validity is from 2008 to 2011. I heard that I will be able to use this expired petition and process it as cap exempt petition and use it to switch from L1 to H1.
Employer B is willing to process this expired petition for me.
But is it possible to do a change of status to H1 when my L1 extension is still in progress and has received RFE?
How challenging it would be to move to H1 (considering USCIS scrutiny) if the current L1 Extn is under RFE
Appreciate if some one could provide answer as quickly as possible. Thank you, appreciate your help.

Ramesh

When is L1 associated I 94 expiring? If your I 94 has already expired you cant move to H1 while being in US unless your L1 extension is approved first.

This is my opinion not legal advice

[RameshR]

Thanks Raghvi, L1 associated I-94 ended on July 15 2013. Applied L1 Extn on July 13th and received RFE on Sep 7 2013. Now, on consultation with an Employer B, he says it is definitely possible to apply petition to change my status to H1B using the expired petition. Even though, I am apprehensive about that.
In case the consultant applies for COS to H1b , is it going to be rejected straight away?

If rejected, will that expired petition be completely over and no other chances for it to be re-applied at later point?

Is it definitely not possible to change status until my current L1 is approved.

Is it just COS to H1 not possible (or) COS to L2 or H4 also not possible (going on my husband's L1 or on his new H1 from Oct-1)

[raghvi]

Thanks Raghvi, L1 associated I-94 ended on July 15 2013. Applied L1 Extn on July 13th and received RFE on Sep 7 2013. Now, on consultation with an Employer B, he says it is definitely possible to apply petition to change my status to H1B using the expired petition. Even though, I am apprehensive about that.
In case the consultant applies for COS to H1b , is it going to be rejected straight away?

If rejected, will that expired petition be completely over and no other chances for it to be re-applied at later point?

Is it definitely not possible to change status until my current L1 is approved.

Is it just COS to H1 not possible (or) COS to L2 or H4 also not possible (going on my husband's L1 or on his new H1 from Oct-1)

Employer B is wrong. How will COS be approved when you are not currently in status? In order to be in status from July 15 th onwards, you should first get L1 extension approved.
If employer B applies a COS to H1 it will most probably end up as RFE asking first to prove L1 extension. If not RFE it will be approved as consular processing.

As your I94 has expired Any COS is not possible until L1 extension is first approved.

There is another way of moving to H1/L2/H4, that is, by leaving US and going for H1/L2/H4 visa stamping at a US consulate outside US. And if stamping approved then return on that visa.

If you dont want to leave US and attend stamping interview the only option is to first get L1 extension approved.
Advised to upgrade L1 ext to premium in order to get a response faster on L1 extension decision.

If L1 extension is rejected you should leave US and attend interview for H1/L2/H4.

This is my opinion not legal advice.

[RameshR]

Thanks a Lot Raghvi.. Appreciate your help.
Ramesh