L1 to H1 Change of Status

[rameshsharma]

Hi,

I had a L1 Visa for a company which expired last year. My company applied for H1 last year, but it was not selected in lottery last year. I am still on i-94, that is valid till next year. This year, my company has decided to apply L1 to H1 Change of Status(COS) for me. I am very much confused with COS and normal processing of H1 and have few questions on it.

1. What is COS and how is this different from normal H1 processing ? Since I have i94 valid this next year, which would be good for me ?
2. Does this COS goes through lottery just like normal H1 processing ?
3. I heard that until I get the approval from USCIS (petition approval), I would have to stay in US. If I leave before that, then my application for COS would be rejected/abandoned and I would have to wait for next year H1 quota. Is this true ?
4. I am planning to go to India for a vacation mid of the year, sometime in July. Will this be a problem if COS is applied for me ?
5. Does traveling outside US impact an approved COS. Like I might face issues for stamping in Oct before coming back?

Please let me know if any more information is required. This is very urgent. Please respond.

Thanks.

[raghvi]

Hi,

I had a L1 Visa for a company which expired last year. My company applied for H1 last year, but it was not selected in lottery last year. I am still on i-94, that is valid till next year. This year, my company has decided to apply L1 to H1 Change of Status(COS) for me. I am very much confused with COS and normal processing of H1 and have few questions on it.

1. What is COS and how is this different from normal H1 processing ? Since I have i94 valid this next year, which would be good for me ?
2. Does this COS goes through lottery just like normal H1 processing ?
3. I heard that until I get the approval from USCIS (petition approval), I would have to stay in US. If I leave before that, then my application for COS would be rejected/abandoned and I would have to wait for next year H1 quota. Is this true ?
4. I am planning to go to India for a vacation mid of the year, sometime in July. Will this be a problem if COS is applied for me ?
5. Does traveling outside US impact an approved COS. Like I might face issues for stamping in Oct before coming back?

Please let me know if any more information is required. This is very urgent. Please respond.

Thanks.

1. H1 petition can be applied either as consular process or COS (Change of Status). If applied and approved as consular process, the approved petition I797 doesn't come with an I-94 and one would need to go to a US consulate outside US, get H1 stamped and enter US on H1 in order to move to H1 status. If applied as COS, and approved, one gets an approved I797 with a new I-94 and moves to H1 status from H1 start date without
the need to go out of US for visa stamping.
Now both COS and Consular can be either filed as normal processing or premium processing. In Normal processing USCIS generally takes 2-3 Months (without RFE) to decide on granting H1 petition approval. In premium processing, USCIS charges an extra $1225, but has to take a decision on the petition within 15 days (without RFEs) otherwise the fees is to be refunded.
2. If there is lottery, all fresh H1s go through it.
3. Yes, COS gets abandoned if one travels while it is pending. The H1 petition may not get rejected but a COS is denied. If petition is approved but COS is denied, you would not automatically move to H1 status from H1 start date. The employer would have to file an amendment to convert from consular to COS OR you would have to travel out if US again, get H1 stamped and return on H1 in order to move to H1.
4.If you are planning to leave in July , on what visa are you planning to come back ? Remember, new H1 can start only from Oct 2014, so are you planning to be in India from July till Oct 2014?
If at all you need to travel, travel only after COS is approved, and travel back after getting H1 stamping done.
5. As explained above, if you travel , you cannot come back unless your H1 is stamped, and even if stamped, the earliest you can come back is Sep 20th 2014, and even if you come back on Sept 20, 2014, the earliest you can start on H1 is 01-Oct-2014.

This is my opinion not legal advice.

[rameshsharma]

Thanks Raghvi.

I am still confused with the 2nd point "Does this COS goes through lottery just like normal H1 processing ?" Does COS is considered as fresh VISA and it will be under lottery as well ?

I have some more questions :
1. If applied as COS, I do not need to go for VISA stamping at all, even if I go after October for a vacation ?
2. Regarding rejection of COS, does COS get converted into consular process, or it is abandoned for current year ?
3. When is the normal time for COS petition to get approved ?

Please let me know.

Thanks in advance.

[raghvi]

Thanks Raghvi.

I am still confused with the 2nd point "Does this COS goes through lottery just like normal H1 processing ?" Does COS is considered as fresh VISA and it will be under lottery as well ?

I have some more questions :
1. If applied as COS, I do not need to go for VISA stamping at all, even if I go after October for a vacation ?
2. Regarding rejection of COS, does COS get converted into consular process, or it is abandoned for current year ?
3. When is the normal time for COS petition to get approved ?

Please let me know.

Thanks in advance.

All fresh H1 petitions, irrespective of COS or Consular will go through the lottery if at all there is a lottery.

1. You need to understand difference between Status and Visa. One needs a valid visa to reach US Port of Entry. As part of COS, if approved, your status would change from L1 to H1 , but that doesnt mean you dont need a valid visa to enter US. You would need to have a valid visa in passport to be allowed entry to US. As you currently dont have any valid visa in your passport, if at all you go out of US now or later in order to come back to US you would need a new visa stamped in your passport so YES, you would need to go for stamping.
2. If there is lottery, and if your application is selected in the lottery, and if you travel while the Change of Status is pending, the COS gets abandoned, and H1 petition would get approved as consular process (if everything else is fine).
3. Normal processing 2-4 Months. Premium processing 3-4 Weeks . (If no RFEs) , If there is a lottery add another 1-2 Weeks.

This is my opinion not legal advice.