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Can I stay in US when L2 to H1 COS is still pending and spouse converts to h1

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  • Can I stay in US when L2 to H1 COS is still pending and spouse converts to h1

    I am currently in US with a pending l2 to h1 COS( no response on h1 yet). My spouse's L1 expired in June 2013 and his company filed a renewal as well as a new h1. Now his h1 is approved and l1 renewal has an rfe. My questions are
    1. Can I still be in US legally, since my Cos(l2 - h1) is pending when my spouse leaves to get his h1 activated.
    2. Will I be out of status when his h1 is activated ?

    Thanks..

  • #2
    Originally posted by visahelp17 View Post
    I am currently in US with a pending l2 to h1 COS( no response on h1 yet). My spouse's L1 expired in June 2013 and his company filed a renewal as well as a new h1. Now his h1 is approved and l1 renewal has an rfe. My questions are
    1. Can I still be in US legally, since my Cos(l2 - h1) is pending when my spouse leaves to get his h1 activated.
    2. Will I be out of status when his h1 is activated ?

    Thanks..
    When is the L1/L2 expiring? When is the L1/L2 I-94 expiring? What is the status on RFE for L1 renewal? Why no response on your L2 to H1 is it because the L2 I-94 has expired?

    L2 is a dependent visa so if there is no L1 then L2 doesnt have any significance, its either before or same time the L2 should move to H4 or any other status, before L1 stops maintaining L1 status.
    1. Not if the primary L1 is not present on L1. A pending COS doesnt grant you valid status.
    2. Yes.

    Advised ot upgrade L2 to H1 decision to premium to get a result faster and delay the L1 to h1 till L2 to h1 is decided.

    This is my opinion not legal advice.

    Comment


    • #3
      The L1 visa and the I 94 expired in June 2013 and renewal was filed in May. We are currently staying on the 240 day grace period which is allowed when the renewal is filed. We got an Rfe on L1 but simultaneously both my husband and me had filed for H1 as well. Now his H1 (counsular petition) is approved but mine is still pending. I had changed the application to premium on Oct 3 but due to shutdown there has been no response. The attorney is saying that things should move faster now and we should expect a reply soon.

      My husband's employer has suggested that since my COS from L2 to H1 was filed in April when the L2 was valid I am allowed to stay as long as the petition is pending, in case it is rejected I will need to leave the country and apply for H4. Please confirm if this understanding is correct that since my COS is still in progress, I am allowed to stay as long as I don't get a response, irrespective of whether my spouse is on L1 or H1.

      Thanks for the help!!
      Last edited by visahelp17; 11-06-2013, 03:55 PM.

      Comment


      • #4
        Originally posted by visahelp17 View Post
        The L1 visa and the I 94 expired in June 2013 and renewal was filed in May. We are currently staying on the 240 day grace period which is allowed when the renewal is filed. We got an Rfe on L1 but simultaneously both my husband and me had filed for H1 as well. Now his H1 (counsular petition) is approved but mine is still pending. I had changed the application to premium on Oct 3 but due to shutdown there has been no response. The attorney is saying that things should move faster now and we should expect a reply soon.

        My husband's employer has suggested that since my COS from L2 to H1 was filed in April when the L2 was valid I am allowed to stay as long as the petition is pending, in case it is rejected I will need to leave the country and apply for H4. Please confirm if this understanding is correct that since my COS is still in progress, I am allowed to stay as long as I don't get a response, irrespective of whether my spouse is on L1 or H1.

        Thanks for the help!!
        As L1 I-94 expired in June 2013, the subsequent move from L1 to H1, L2 to H1 (without leaving US) both will depend upon the successful approval of L1 extension first. From June 2013 onwards your spouse, in turn you also, would be considered out of status unless L1 extension gets approved first.

        If L1 leaves US you will lose the L2 status. The H1 approval for your spouse, and H1 pending for you is immaterial.

        You are right in assuming that you are allowed to stay till L1 extension petition decision comes, but only if L1 stays in US too. If L1 leaves US the extension request doesn't have any significance. If your L2 to H1 RFE requires you to prove valid status from June 2013 onward how will you prove it without L1 extension approval? Merely filing of extension request doesnt grant a valid status.

        You are wrong in assuming you are allowed to stay on the "grace period " irrespective of your spouse's L1/H1 status. Till you move on to H1 of your own, your L2 is tied to your spouse's L1, if spouse goes out of status/US so will/should you.

        In such scenarios the L1 extension should have been upgraded to premium in Aug/Sep 2013 itself. Currently if L1 extension decision appear bleak or is being abandoned, I would advise that you and your spouse leave US, attend respective H1 visa interviews and return on respective H1 visas.

        This is my opinion not legal advice.

        Comment


        • #5
          Originally posted by raghvi View Post
          As L1 I-94 expired in June 2013, the subsequent move from L1 to H1, L2 to H1 (without leaving US) both will depend upon the successful approval of L1 extension first. From June 2013 onwards your spouse, in turn you also, would be considered out of status unless L1 extension gets approved first.

          If L1 leaves US you will lose the L2 status. The H1 approval for your spouse, and H1 pending for you is immaterial.

          You are right in assuming that you are allowed to stay till L1 extension petition decision comes, but only if L1 stays in US too. If L1 leaves US the extension request doesn't have any significance. If your L2 to H1 RFE requires you to prove valid status from June 2013 onward how will you prove it without L1 extension approval? Merely filing of extension request doesnt grant a valid status.

          You are wrong in assuming you are allowed to stay on the "grace period " irrespective of your spouse's L1/H1 status. Till you move on to H1 of your own, your L2 is tied to your spouse's L1, if spouse goes out of status/US so will/should you.

          In such scenarios the L1 extension should have been upgraded to premium in Aug/Sep 2013 itself. Currently if L1 extension decision appear bleak or is being abandoned, I would advise that you and your spouse leave US, attend respective H1 visa interviews and return on respective H1 visas.

          This is my opinion not legal advice.
          Thanks, I understand your point that our stay from June onwards is on the grace period which will end as soon as the L visa is rejected, however that has not happened yet and we are prepared to leave in that case.
          However my question is not related to the L1, my question is since I filed the COS for L2 to H1 before the L2 expired, I am legally allowed to stay until the COS is rejected. I also checked this on USCIS Website, read text below (212(a)(9)(B) of the Act), I just wanted to get a confirmation on this. This indicates regardless of my spouse's L1 visa, I am allowed to stay however in case the COS is rejected, I will need to depart.

          What if I file for change of status on time but USCIS does
          not 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 change 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 change of
          nonimmigrant status request. Nevertheless, DHS may bring a
          removal proceeding against you, even if you have an application for
          change 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 change of
          status application is pending if it was filed prior to the expiration of
          your Form I-94.
          If your application for a change of status is approved, the change
          of status 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 depart the
          United States immediately.

          Comment


          • #6
            Originally posted by visahelp17 View Post
            Thanks, I understand your point that our stay from June onwards is on the grace period which will end as soon as the L visa is rejected, however that has not happened yet and we are prepared to leave in that case.
            However my question is not related to the L1, my question is since I filed the COS for L2 to H1 before the L2 expired, I am legally allowed to stay until the COS is rejected. I also checked this on USCIS Website, read text below (212(a)(9)(B) of the Act), I just wanted to get a confirmation on this. This indicates regardless of my spouse's L1 visa, I am allowed to stay however in case the COS is rejected, I will need to depart.

            What if I file for change of status on time but USCIS does
            not 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 change 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 change of
            nonimmigrant status request. Nevertheless, DHS may bring a
            removal proceeding against you, even if you have an application for
            change 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 change of
            status application is pending if it was filed prior to the expiration of
            your Form I-94.
            If your application for a change of status is approved, the change
            of status 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 depart the
            United States immediately.
            If you read the above carefully it says that you are "not actually in a lawful nonimmigrant status" during this grace period.

            Further, the status of primary L1 during this time will supersede this because if L1 fails to maintain status, L2 automatically loses status.

            This is my opinion not legal advice.

            Comment

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