L1B extension RFE . Needs to stay for medical reason

[swadesh1025]

Hi

Please advise me regarding this condition.

Currently my husband is on L1B which will expires on Jan 2011. I94 also expires on same date.
I am on L2 with EAD and my L2,I94,EAD expires on Jan 2011.
Currently I am pregnant 32 weeks .

My husband already applied for his L1B extension 3 months back and asked his company to apply for premium processing saying that I cannot travel in the later stage of pregnancy incase the visa extension get rejected. But his company didn't apply PP.

Now my husband got RFE about the specialized knowledge and he and his company is preparing documents for that.


But I have seen in different forums that there are lot of rejections are happening in L1B extension (in specialized knowledge) and we know a lot of people got RFE on specialized knowledge and they got rejected even after submitted the documents.

I am wondering what are the options we do have if our visa get rejected? Can we extend our stay till my delivery ? My OB doctor told us that it will be a high risk for me if I travel in this stage since I am under a high risk pregnancy category and I need to go for some check ups for every week because of this. She told us that she can provide medical certificate for my high risk situation, but I don't know where we can submit this.


I am working in a software company since I have EAD.Considering my situation my company is now planning to apply for H1B for me very soon (Since H1B quota is still open). So if I get H1B can I apply H4 for my husband even though his L1B decision is pending in USCIS? If his L1B gets rejected and I get my H1B can he switch immedietly to H4? or he needs to go back to our home country and needs to be stamped from there? Or can he apply for COS from here in US?


If I am not getting H1B , can we ask my husband's company to provide a B1 (Business visa) for him? Then which visa I can apply? do USCIS provide any dependent visa for B1?

Is there any other option/ temporary visa available for us in such condition?

I would really appreciate if anyone can guide me.

Thanks

[shervin143]

I am working in a software company since I have EAD.Considering my situation my company is now planning to apply for H1B for me very soon (Since H1B quota is still open). So if I get H1B can I apply H4 for my husband even though his L1B decision is pending in USCIS?
>>> Possible. If the H4 gets approved, then your husband cannot work for his L1 employer any longer unless he leaves the country and return back on L1 visa.

If his L1B gets rejected and I get my H1B can he switch immedietly to H4?
or he needs to go back to our home country and needs to be stamped from there? Or can he apply for COS from here in US?
>>> COS to H4 is possible only if applied with a valid I-94. If his I-94 (L1) has already expired, the a COS is not possible. The only option is to get the H4 stamped (based on your H1B petition) and return back.


If I am not getting H1B , can we ask my husband's company to provide a B1 (Business visa) for him? Then which visa I can apply? do USCIS provide any dependent visa for B1?
>>> Like mentioned above, a COS t any other status (including B1) is not possible if the I-94's have already expired. There is no dependent visa for B1. You will also need to get a B1/B2. Consult a good immigration attorney in such case.

Is there any other option/ temporary visa available for us in such condition?
>>> B1/B2 is the only option.

I would really appreciate if anyone can guide me.
>>> Your best bet is to apply for H1B in premium process and get a H4 for your spouse. If his H4 gets approved after his L1 approval then he will need to leave the country and return back on L1 visa to start working again. If his L1 gets denied, he can stay with you on the approved H4.

Alternatively, he can ask his company to upgrade his application to premium (Will get you the result in 15 days). Maybe the company is not willing to do it because of the additional $1000. If you guys can bare that cost, I am sure the company will be willing to upgrade the petition to premium.

[swadesh1025]

Thanks shervin143, for your valuable inputs. I really appreciate that.

Actually my husband asked his company 3 months back that he is willing to pay the premium processing charge for getting the decision soon but company didn't agree that.

Currently we have a valid I94 but it will expire very soon. My company already started the paper work of H1B with premium processing. But I am not sure whether it will get approved or not. If I applied H1B before expiring I94 and the approval notice come after I94 expires then will it be a problem? After approval do I need to do COS? (ie from L2 to H1b)then is that Ok even if my I94 expires?

What is the possibility of applying a B1/B2 visa from here itself? Will it approve?
Travelling back to our home country is the biggest risk for us now due to the medical condition.

If any company can apply an H1B for him (even after expiring I94) will it approve?

Expecting your valuable suggestions
Thanks

[txh1b]

Actually my husband asked his company 3 months back that he is willing to pay the premium processing charge for getting the decision soon but company didn't agree that.

Makes sense for them to deny it as they are the perfect employers that want to use the system to their advantage without caring for the status of the people.

Most of teh L1 employers wait till the end to apply for the extensions (sometimes even knowing it will be denied) to buy time, have the specialized worker keep working for the client and bringing in revenue. Once the denial happens, they say SOL and send them back.

Too old of a trick for the informed to buy into and get fooled.

[shervin143]

If I applied H1B before expiring I94 and the approval notice come after I94 expires then will it be a problem?
>>> Not a problem as long as you file the COS before your I-94 expires. If the approval comes later, you are all good. The problem arise only of the COS gets denied as you will not have a valid I-94 at that time.

After approval do I need to do COS? (ie from L2 to H1b)then is that Ok even if my I94 expires?
>>> Not sure what you are asking. Can you be little more clear?

What is the possibility of applying a B1/B2 visa from here itself? Will it approve?
>>> It is possible if handled by a good immigration attorney. The COS to B1/B2 need to be filed before your current I-94 expires.

If any company can apply an H1B for him (even after expiring I94) will it approve?
>>> Transfer / Extension / Change of Status are all possible only if filed before the current I-94 expiry date. When you are illegal (expired I-94) none of the above are possible.

[swadesh1025]

Thank you so much shervin143.
What I thought before was, I would need 2 application ie I need to apply for H1B and also apply for COS from L2 to H1B. But now I realize that if I apply H1b from L2 it is a COS. So please ignore that.

It would be great if I get some clarification regarding this scenario.
My company will do the premium processing for my H1 and my husband H4 very soon.
1) If we got H1 and H4 approved first, and after that he got his L1 extension approved , then can he continue to work with his L1 employer? or still he has to go back to our home country and get stamped with L1?

2) If our H1 and H4 processing is pending in USCIS and our L1 and L2 visa extension got rejected then we should go back to our home country? or still we can wait for our H1 and H4 decision here in US?

3)I had read in some forums that even if our L1B extension got rejected, still we can apply for MTR(Motion to Reconsider). If so, can my husband continue to work with his L1 employer until we get a final decision? How long normally it will take to get the final decision for MTR? Can we legally stay here till we get a final decision?

Actually we are thinking for different options for legally staying in US until my delivery.

I would really appreciate if you can provide any suggestions.
Thanks

[shervin143]

What I thought before was, I would need 2 application ie I need to apply for H1B and also apply for COS from L2 to H1B. But now I realize that if I apply H1b from L2 it is a COS. So please ignore that.
>>> There are two options while filing the H1B petition. One is COS (comes with a new I-94) and another is consular process (Get visa stamped and return back to work). So your employer need to file the H1B as a COS from L1. That is very important.

1) If we got H1 and H4 approved first, and after that he got his L1 extension approved , then can he continue to work with his L1 employer? or still he has to go back to our home country and get stamped with L1?
>>> If you get your H1B / H4 approved first (Approval notices comes with new I-94s), then your husband should immediately stop working for the L1 employer since H4 status holders are not allowed to work. If the L1 extension gets approved after that, then he can start working since his status will change back to L1 at that time as per the last action rule. In such case, it is advisable to to go a near by CBP post to confirm that he is in L1 status before geting back to work.

2) If our H1 and H4 processing is pending in USCIS and our L1 and L2 visa extension got rejected then we should go back to our home country? or still we can wait for our H1 and H4 decision here in US?
>>> Until the H1B / H4 COS gets approved, you will be in L1 / L2 status. So if L1 / L2 gets rejected first, then you will have to leave the country immediately since you will hold no status between L1/L2 rejection until the H1B/H4 decision. If it is the other way around (H1B/H4 gets rejected first), then you can stay until L1/L2 decision is made. However, keep in mind that if both L1/L2 and H1B/H4 gets rejected, then the time spent in U.S after the current I-94 expiry date will be considered as illegal stay.

3)I had read in some forums that even if our L1B extension got rejected, still we can apply for MTR(Motion to Reconsider). If so, can my husband continue to work with his L1 employer until we get a final decision? How long normally it will take to get the final decision for MTR? Can we legally stay here till we get a final decision?
>>> You can legally stay in the country when an MTR is filed. Your husband can continue to work as well. However, if the MTR gets rejected, then the time spent in U.S after the I-94 expiration is considered illegal. More illegal stay will invire more issues with your future petitions, stamping and GC.

[swadesh1025]

Hi shervin143
I am always thankful for your suggestions and reply.
Let me ask one more thing regarding the first question,

>>> If you get your H1B / H4 approved first (Approval notices comes with new I-94s), then your husband should immediately stop working for the L1 employer since H4 status holders are not allowed to work.

Stop working means, he needs to resign from his L1 employer or is that ok if he can take unpaid leave for 5 months? After this critical situation we can go back to our home country.


If the L1 extension gets approved after that, then he can start working since his status will change back to L1 at that time as per the last action rule. In such case, it is advisable to to go a near by CBP post to confirm that he is in L1 status before geting back to work.

The near by CBP means he can just go to the "US Custom and Border Protection Office " nearer to our area and get his L1 stamped from there? He doesn't want to go back to our home country for this purpose. After that he can continue to work with L1 employer.Correct?

Thanks for your helping suggestions.

[shervin143]

Stop working means, he needs to resign from his L1 employer or is that ok if he can take unpaid leave for 5 months? After this critical situation we can go back to our home country.
>>> That is between him and his employer. He can take unpaid vacation. He cannot get paid when he is in H4 status since H4 regulations won't allow him to work. He can go back to work when the L1 extension gets approved later.

If the L1 extension gets approved after that, then he can start working since his status will change back to L1 at that time as per the last action rule. In such case, it is advisable to to go a near by CBP post to confirm that he is in L1 status before geting back to work.

The near by CBP means he can just go to the "US Custom and Border Protection Office "
>>> Yes.

nearer to our area and get his L1 stamped from there?
>>> You cannot get the visa stamping done at the CBP post. Stamping can be done only by attending the visa interview at a U.S Consulate. I was just asking him to visit the nearby CBP post to confirm his status after receiving his L1 extension.

He doesn't want to go back to our home country for this purpose. After that he can continue to work with L1 employer.Correct?
>>> If his status is L1 (L1 extension gets approved with a new I-94 after H4 approval), then YES.

[swadesh1025]

Thanks shervin143 for providing helpful suggestions.

Let me ask one more point regarding "the last action rule".

"If the L1 extension gets approved after that, then he can start working since his status will change back to L1 at that time as per the last action rule. In such case, it is advisable to to go a near by CBP post to confirm that he is in L1 status before geting back to work."

So what will be my status then? Actually he already submitted his L1B and my L2 visa extension. So If I got H1B approved and after that he got his L1B and L2 extension approval (because he filed those together), then according to "the last action rule" I will become L2 again? If so, how can I change my status back to H1B? Is there any possibility?
Anyways, now I am thinking any legal status is fine for me
It would be great if you can provide a reply.
Thanks

[shervin143]

You will have to determine your status based on the last action rule as well. Your status will be as per the last I-94 that you receive.
You can get back to H1B again by either filing a COS from L2 to H1B again or by leaving the country and returning back on H1B visa.