L2 to H1 and travel

[samsalmanu]

Really confused here .. please help .

I'm on an L1 and my wife is here on L2 working (EAD) with a local company... they processed H1 for her this year ..
and she has gotten through the lottery .. our visa (l1 and l2) expire june 20th and i've applied for extension for both..
the EAD also expires on june 20th ..

questions
1. is it okay if she travels to india for a week now ? will that affect the h1 in process or the current l2?
2. after june 20th if the extension does not come through, she cannot work. If the h1 approval comes through before the extension, can she start working on h1 ?
or can she start working only after getting the h1 visa stamped?

[txh1b]

1. H1 will get processed but COS which puts her directly on H1 status from Oct 1st will not get processed. Due to two pending applications, the last action rule also applies. Current L1 extension will get processed as well. As she is likely abandoning a H1 COS, it depends on how she enters US and what visa she would be entering again.

2. H1 will be active for work only after Oct 1st. In your case, she can work on H1 only if she has a visa stamp and re-enters on H1b or files for another amendment to change status from L2 to H1b after it gets approved.

[samsalmanu]

I got confused... Could you please clarify bit more. This is really very urgent.

We have decided not to travel to India. I'm on an L1 and my wife is here on L2 working (EAD) with a local company... they processed H1 for her this year 2008..
and she has gotten through the lottery .. our visa (l1 and l2) expire june 20th 2008 and i've applied for extension for both..
the EAD also expires on june 20th 2008..

questions:
1) If my company applies for L2 extension(before june 20th 2008), will her H1-B lottery become invalid?
2)To work on H1-B does she need her VISA stamped or does she just require just the approval receipt. (She is applying for H1-B first time but got thru the lottery)
3)She would be able to work on new H1-B only from Oct 2008. In order to work till then she will have to apply for L2 extension right?
4) Is there a way to extend EAD or should she apply for a fresh EAD?
5) Does she need to wait for L2 approval to apply for EAD renewal/new OR can she apply for both(L2 extension and EAD renewal/new) simultaneously. What is the process for this?

[DMX17]

Assuming the travel plan is a no-go..

You first need to make sure whether your wife's H1 is applied with a COS (change of status). Ask her employer. Pretty good chance they did apply for COS.

Her approved H1 with a COS does not kick in till Oct 1st. She needs to maintain L2 status till Oct 1st. This part requires filing an L2 extension as you know. I don't know if the EAD can be applied with a pending extension.

There are two possibilities with respect to L2 extension assuming the case is approvable and the H1 is approved with a COS before Oct 1st.

1) L2 extension is approved before Oct 1st and status remains L2 till Oct 1st. On Oct 1s1, however, the approved H1 with COS takes effect and her status changes to H1. Life is good. Keep working and getting paid all the time on H1.

2) L2 extension is pending on Oct 1st. Her status still changes to H1 based on H1 with COS. Follow H1 rules for this period. Now, when the L2 extension is approved after OCt 1st when your wife is on H1 status, your wife's status changes back to L2 based on Last Action Rule. Last Action of her case prevails and determines the status.

[samsalmanu]

That means if she has to work till oct 2008, my company will have to file for her L2 extension and also if due to bad luck her L2 petition gets approved after Oct 1 2008 then she will lose her H1-B status.

Is this only for H1-B applied with COS or Last action rule applies for everything?
Also if someone could answer my questions related to EAD it would be great.
"4) Is there a way to extend EAD or should she apply for a fresh EAD?
5) Does she need to wait for L2 approval to apply for EAD renewal/new OR can she apply for both(L2 extension and EAD renewal/new) simultaneously. What is the process for this?"

Thanks

[txh1b]

Last action rule applies to any pending petitions. The status change happens only if there is a COS and hence the significance of last action rule is more in COS cases.

4. L2 extension has to be approved first before EAD can be applied. It is a new EAD and there is nothing called EAD extension AFAIK.

No EAD means, the user has to stop working on L2 temporarily until EAD is approved.

L1/L2 extension can be PP to get the result in 15 days. Still you will be waiting for EAD and L2 has to take off from work and not get paid.

[samsalmanu]

Thank you.

I do have one more doubt:

If my spouse's H1-B gets approved on aug 2008 and l2 extension gets approved on september 2008, in october 2008 her H1-B will be valid right?

[txh1b]

Thank you.

I do have one more doubt:

If my spouse's H1-B gets approved on aug 2008 and l2 extension gets approved on september 2008, in october 2008 her H1-B will be valid right?

Yes. Last action is effective date of action not approval date. As H1b kicks in on Oct 1st, that is the last action.

[samsalmanu]

hmm.. I just need the H1-B approval to work from oct 2008 right? I do not need to get H1-B visa stamped on my passport right?

Based on your suggestions I will have to apply for L2 Visa extension then EAD extension and luck would decide whether I will be in H1-B or L2 status in Oct 2008. :-)

[txh1b]

No visa stamp is needed IF H1b is approved and I797 contains an attached I-94 at the bottom.

[DMX17]

Assuming that the H1 is applied with a COS, my guess is there will be an RFE on the H1 case as there is gap in L2 status from June to Oct 1st.

[txh1b]

Assuming that the H1 is applied with a COS, my guess is there will be an RFE on the H1 case as there is gap in L2 status from June to Oct 1st.

Why? The OP decided to file for L2 extension as well. That should take care of it.

[DMX17]

Why? The OP decided to file for L2 extension as well. That should take care of it.

Oh so, USCIS will crosscheck other things under process to make sure that everything's inline for the COS to be approved.

Long day today. I am tired of these stupid classes they make me take.

[txh1b]

Oh so, USCIS will crosscheck other things under process to make sure that everything's inline for the COS to be approved.

Actually, you are right. H1b will result in a RFE for providing the gap status information and the OP has to provide it as the L2 extension was not filed at the time of H1b.

USCIS will not go to the extent of cross checking and figuring it out. Issuing a RFE is easier.

[DMX17]

Actually, you are right. H1b will result in a RFE for providing the gap status information and the OP has to provide it as the L2 extension was not filed at the time of H1b.

USCIS will not go to the extent of cross checking and figuring it out. Issuing a RFE is easier.

All Right.