L1b to H1b

[tanweernoor]

Hi

I'm an employee of Company A India division and currently on transfer to Company A US division for 18 month on L1B visa expiring June 2010. My current term with US division expires end in March-09. Meanwhile Company B has filed my H1 and it is approved.
so company B is offering me to join them from Oct 1st 2008,
I am marrying in Sept- 2008 and my wife will be coming to US on L2 VISA in september last week itself.
is it possible for me to continue my assignment on L1 VISA itself till march/april-2009 and later on i can join the Company B.
will there be any problem if i am delaying my marriage till november 2008 and i can enter to US on L1/L2 status.
and my last question is if it is compulsary to go to India for stamping my H1 before i can switch the job from L1 to H1.


Please advice the same as soon as possible.

[DMX17]

The answer depends on whether the H1 approval came with an attached I-94 meaning your status will change to H1 on Oct 1st. On this date, you are no longer on L1 and cannot continue working for your L1 employer A.

If you want to continue with L1 employer till March 2009 and your H1 is approved with a COS, you will need travel before Oct 1st and re-enter after Oct 1st on L1 (Leap-frog the H1 start date). This will make sure that your status is L1 and not H1 after Oct 1st.

COS = Change of Status (most employers apply for a COS while the employee is in the U.S. and there is no gap issues).

[tanweernoor]

Thanks a lot for your reply, I just received I797c from employer B for H1.
it says case type as I129 Petition for a non-immigrant worker, is it COS?
so is it possible, if i go back to India and come back before Oct 1st with my wife (on L2) and can continue to work with Employer A till march/april -09 and then go to India for H1 stamping?
or without stamping is it possible for me to join Employer B in US by march/april?
Please guide

[txh1b]

I797C is just a receipt and you can find out nothing from it. You need to ask the employer or attorney if they applied for a COS or get your hands on the form I-129 that the employer filed.

[DMX17]

Thanks a lot for your reply, I just received I797c from employer B for H1.
it says case type as I129 Petition for a non-immigrant worker, is it COS?
so is it possible, if i go back to India and come back before Oct 1st with my wife (on L2) and can continue to work with Employer A till march/april -09 and then go to India for H1 stamping?
or without stamping is it possible for me to join Employer B in US by march/april?
Please guide

Assuming your H1 is filed with a COS and it has been approved. To remain on L1/L2 status, you will need to enter after Oct 1st (NOT before). If you enter before Oct 1st and you have an H1 already approved with a COS before you leave the U.S., your status changes to H1 regardless of your travel. If you re-enter before Oct 1st, you cannot work for your L1 employer on and after Oct 1st.

[tanweernoor]

so, what happen in case if i am entering after oct1st-08, my H1 will be valid or they will cancel it.

[txh1b]

so, what happen in case if i am entering after oct1st-08, my H1 will be valid or they will cancel it.

Are you talking about a petition or a visa?

The H1b petition remains active as long as the employer does not revoke it. If your COS for H1b is not approved, you can continue on L1. Otherwise, you have to join H1b employer from Oct 1st. No grace period.

If you leave US before H1b petition is approved, you are considered to have voided the COS but the H1b will be processed as a CP.

[tanweernoor]

Hi
I just talked to employer B who filed H1 for me, He said he has applied COS for me but he also said i can travel to India anytime(may be may-june-08) before Oct 1st and come back to US before oct 1st. also he assured me i can work with my previous employer(employer A) till the time i am not getting a good project to his clients may be till Jan or feb.
is it true or just he misguide me.

[txh1b]

Hi
is it true or just he misguide me.

He has partly misguided you. His guidance can be true provided you abandon the COS which will require an amendment to be filed for you to get back on H1b or get a visa stamp and enter on H1b.

Assuming you are giving up your COS, what he said is right. If your COS goes through, you have no grace period to wait for the right project and are on H1b from day 1 and have to be paid by the H1b sponsor. Remember, the employer told USCIS that they have a job readily available and waiting for you from Oct 1st.

Project or not, does not matter. If a COS is approved, you are NOT allowed to work on L1b and it is illegal.

Like DMX suggested, you can re-enter US after Oct 1st to void the COS and continue on L1 status. However, change to H1b again later requires an amendment or visa stamp.

[DMX17]

Well, let's say you want to travel in Aug. You have an approved H1 with COS effective Oct 1st before you leave the U.S. You travel and come back on L1 status before Oct 1st. Come Oct 1st, your status changes to H1 since your H1 was approved before you left to your home country and you received an approval notice for the same.

Once on H1 status, you can only work for your H1 employer and "he/she" must pay you all the time, project or not.

[guptpreet]

leapfrog H1

Assuming your H1 is filed with a COS and it has been approved. To remain on L1/L2 status, you will need to enter after Oct 1st (NOT before). If you enter before Oct 1st and you have an H1 already approved with a COS before you leave the U.S., your status changes to H1 regardless of your travel. If you re-enter before Oct 1st, you cannot work for your L1 employer on and after Oct 1st.

My situation is similiar to this.I am currently in USA on L1 with company A and have approved H1B with COS from company B.I have a question.Can I Leap Frog the H1B with COS by travelling to Canada on 30th Sept and then coming back after 01-OCT.
Will that change my active status to L1 and allow me to continue with the current L1 company.
Please advice.
Thanks

[txh1b]

Will that change my active status to L1 and allow me to continue with the current L1 company.

Thanks

You can do that and you need to explain to CBP that you want to enter on L1 and get a new I-94. Generally, New I-94 is given only for travel more than 30 days in Canada. Be specific that you had a COS that you intend not to use if asked. Carry L1 documents and H1 documents to show that you are getting back on L1 instead of H1b.

[guptpreet]

Thank you for your reply.
1 more question , can I leap-frog my H1 by travelling to and returning from Canada before 30th-Sep or the travel has to happen before 01-Oct and the return has to happen after 01-Oct?

Actually I heard that your most recent I-94 is valid.Does "most recent" means the starting date of the I-94 or the date it was issued?

If its date of issue then I think I may go out anytime to get the new I-94 and that need not be after 01-Oct.

Seek your advice on this.
Thanks

[txh1b]

Look at Efren Hernandez memo. Most recent I-94 is valid but if a future COS happens, that is valid. For avoiding the COS, entry should be after Octy 1st.

[guptpreet]

L1 to H1 COS

Thank you.

Is there any other way(other that travelling out of US) to cancel the COS say can my H1B employer withdraw the COS or ask for a cancellation of the COS.