L1 to H1 status change - Urgent

[mukkollu]

I was on L1 in 2007. My change of status from L1 to H1 was approved in October 2007. I continued to work on L1 till March 2008 because I was critical in the project. I started to work on H1 from April 2008. Am I out of status? I want to transfer H1 to another employer now. Will this be a problem? I heard that there is a clause which says that we can continue to work on L1 for 180 days even after status change and need to send a form to USCIS about the same.

Please advise.

[txh1b]

No such 180 day rule. You have worked illegally without authorization on L1 past Oct 1st 2007 which will cause problems in the future.

[mukkollu]

I asked an attorney an hour back. She said that as long as L1 is valid I can work to complete the project.

[txh1b]

I asked an attorney an hour back. She said that as long as L1 is valid I can work to complete the project.

Ha.Ha... Probably needs to go back to school or needs a refresher. Did you tell your COS was approved from Oct 1st?

[mukkollu]

I mentioned her that it was COS. I dont know what to do now. Any idea what problems I could have later? Is there any way to inform USCIS reg. this?

[txh1b]

No, informing USCIS will not fix anything after the fact. As the unauthorized work was done, it could impact green card and visa stamping in the future.

I am surprised about your attorney's comments though!

[enigmatic10me]

I asked an attorney an hour back. She said that as long as L1 is valid I can work to complete the project.

Some attorneys don’t know the rules. I can talk for my self. Many times had been misinformed by many attorneys….

1.) Had been told that student can remain on OPT after October 1st after H-1B approved (completely incorrect)
2.) Had informed by an attorney that have to get my visa stamped for the new employer after H-1b transfer even though my previous visa stamp was valid (completely incorrect one can use old visa stamped as long as its valid along with new I-797 to re-enetr in the USA)
3.) Also, I must get my visa stamped to get my wife’s H4 visa (another incorrect guidance)

Unfortunately, you are out of status. Wish you would have asked this question before October. You need to consult a real good attorney. Try and contact any immigration law firm as they are considered good in this matter.

[txh1b]

The person is currently in correct status. But was out of status in the past while working on L1. In addition, also has unauthorized work.

This means, using AC21 with H1b portability is risky.

AC-21 permits certain individuals originally authorized to perform H-1B employment with one employer to commence H-1B employment with a new employer upon the filing (not approval) of new petition if:
(A)
they were lawfully admitted into the United States;
(B)
their employer filed a nonfrivolous H-1B petition for new employment before the expiration date of their authorized period of stay; and
(C)
subsequent to such lawful admission, were not been employed without authorization in the United States before the filing of such petition.

[mukkollu]

How would USCIS know that I was out of status those 3 months? If I go for premium processing would there be any chance of rejection? Incase the transfer is approved can I start working for the new employer or should I go for visa stampig before working for the new employer?

Please suggest.

[txh1b]

How would USCIS know that I was out of status those 3 months?

You have to tell them in your application and visa forms. Otherwise, if found, it will be misrepresentation which qualifies for a ban.

Also, if you get an approval now (you will possibly get one for sure as you are in the correct status now), but you should work only after getting the approval.

All these will be a open book during the green card process and that is when a small mistake would cost you dearly.

[mukkollu]

If we inform in application and visa forms about the situation, do you think GC process would not get affected?

[txh1b]

If we inform in application and visa forms about the situation, do you think GC process would not get affected?

There are some exceptions under 245(k) rule which could be invoked if the stay was less than 180 days total. But, this is provided the person was allowed to enter into US by CBP legally after an inspection.

[mukkollu]

Thanks a lot for the information.

[mukkollu]

Do you think, consular processing for new H status would help?

[txh1b]

Does not make a difference.