L1B to H1B New without CAP

[debdeep]

Hi,

It would be great if someone could respond back to me, my situation and questions is as below.

I had H1B from Oct 2007 to Jan 2010. I traveled to US in 2007 and 2009 for 6 months. I am now in L1B since 2012 and my I-94 is expiring in Nov 05, 2013 and L1B visa valid till Nov 2014. My employer said since I had H1B status in last 6 years I can do a COS to H1B.

My H1B COS petition was filed in mid Sept 2013 and I got RFE. I am yet to respond to the RFE and it looks like I will can do so not before Oct 25, 2013.

I read somewhere that I have to be on a valid status to file for L1 to H1 COS transfer (in this case my I94 date is my valid status), my question is suppose if I submit my RFE response after Nov 05 2013, will I still be considered under a valid status because by then my I94 would have expired?

Regards,
D

[Nattybone]

Hi,

It would be great if someone could respond back to me, my situation and questions is as below.

I had H1B from Oct 2007 to Jan 2010. I traveled to US in 2007 and 2009 for 6 months. I am now in L1B since 2012 and my I-94 is expiring in Nov 05, 2013 and L1B visa valid till Nov 2014. My employer said since I had H1B status in last 6 years I can do a COS to H1B.

My H1B COS petition was filed in mid Sept 2013 and I got RFE. I am yet to respond to the RFE and it looks like I will can do so not before Oct 25, 2013.

I read somewhere that I have to be on a valid status to file for L1 to H1 COS transfer (in this case my I94 date is my valid status), my question is suppose if I submit my RFE response after Nov 05 2013, will I still be considered under a valid status because by then my I94 would have expired?

Regards,
D

Hello, Debdeep.

I did not understand your statement, 'I am yet to respond to the RFE and it looks like I will can do so not before Oct 25, 2013.'. The timeline indicated on the RFE note is the maximum timeline by which you have to response. Nothing stops you from responding before that date.

About your question about staying beyond I94 expiry. Here is some text from the USCIS website:

What if I file for an extension of stay on time but USCIS
doesn't make a decision before my I–94 expires?
Your lawful nonimmigrant status ends, and you are out of status,
when your Form I-94 expires, even if you have timely applied
to extend your nonimmigrant status. Generally, as a matter of
discretion, USCIS will defer any removal proceedings until after
the petition is adjudicated and USCIS decides your extension of
nonimmigrant status request. Nevertheless, DHS may bring a
removal proceeding against you, even if you have an application for
extension of status pending.
Even though you are not actually in a lawful nonimmigrant status,
you do not accrue “unlawful presence” for purposes of inadmissibility
under section 212(a)(9)(B) of the Act, while your extension of
status application is pending if it was filed prior to the expiration of
your Form I-94.
Although you are out of status, you may be permitted, depending
on your classification, to continue your previously authorized
employment for a maximum period of 240 days while your extension
application is pending if USCIS receives your application before
your Form I-94 expires, and you have not violated the terms of
your nonimmigrant status. You may be required to stop working,
immediately, when the first of the following events occurs:
• 240 days elapses from the date your I-94 expires; or
• USCIS has made a final decision denying your extension
application.
If your application for an extension of stay is approved, the approval
will relate back to the date your Form I-94 expired, and your status
during the pendency of your application will then be considered to
have been lawful.
If your application is denied, you may be required to cease
employment and depart the United States immediately.
In addition, any nonimmigrant visa in your passport granted in
connection with your classification becomes void. Once your visa is
void, you must submit any new visa application at a U.S. consulate
in your home country (not a third country, except in rare instances
as determined by the U.S. Department of State).



I hope this helps.

Wishing you luck.

Cheers,

[debdeep]

Thanks for your response Nattybone. I cannot respond before Oct 25 2013 because I need client letter and my manager is out sick :-(. I have one question. Suppose my H1B is denied, since my L1B visa is valid till Nov 2014. Can I just go out of the country and return?

Regards,
Debdeep

[Nattybone]

Thanks for your response Nattybone. I cannot respond before Oct 25 2013 because I need client letter and my manager is out sick :-(. I have one question. Suppose my H1B is denied, since my L1B visa is valid till Nov 2014. Can I just go out of the country and return?

Regards,
Debdeep

Hello, Debdeep.

I think you should be able to travel and reenter as your stamped visa is valid for 1 more year. But, if you overstay your current I94, you will end up doing a lot of explaining on your next entry. I am not even sure if there has been a change in the policy. Earlier, if you had filed a valid extension petition, and you ended up staying beyond your current I94, in the event of a rejection, you could reenter next time after convincing the Port of Entry officer of your circumstances. That you overstayed as there was a pending petition.

Also, is it not possible to explain the gravity of the matter to your manager / client letter? It is about your visa and stay in the country and he has to be extremely unwell to take this long to help you with a letter. But, these are your organizational matters, and i should not comment.

Hope this helps.

Wishing you luck.

Cheers,