International travel after COS is approved for L1B to H1B

[imkh4u]

Hi my COS is approved for L1B to H1B. I am planning to go to India and come back before Oct 1st, 2012. I have few doubts that I want to clear in this forum. My L1B is till Dec 23rd, 2012 and planning for vacation from July 15 to Aug 15, 2012.

1.) I have two I-94 now with same number, one that I got when I entered US and one with the approved petition. Do I need to submit both the I-94s when leaving US?

2.) When I come back I will enter on L-1B visa, Do I need to file COS again or it will covert my status to H1B automatically on Oct 1st, 2012?

3.) I will be having a new I-94 with L1 and Dec 23rd, 2012 written on it. How i will be having I-94 for H1B with expiry Sep 30, 2015?

4.) Do I need to do I-9 (Employer verification two times). One, when I will come back with new I-94 and Second, on Oct 1st, 2012? And on Oct 1st, 2012 which I-94 number I need to use (if I still have I-94 that has come with approval notice)?

I may come up with more doubts, when somebody answers my above doubts.

Thanks

[shervin143]

First of all it is not advisable to leave the country when the COS is about to happen on Oct 1st. There are plenty of posts that talks about why it is not advisable. If you had to leave, return back only after Oct 1st. If you want to continue to work for the L1 employer, return back in L1 visa. If you want to work for the H1B employer, get the H1B visa stamped and return back in H1B visa. If you enter in L1, then a COS to h1B can be filed later. You won't be able to work for the H1B employer until the COS gets approved.

[imkh4u]

few posts are saying that there is no problem as petition is approved and person is coming back before Oct 1st, when COS will take effect.

[shervin143]

It is kind of grey area. USCIS wants all I-94s to be returned when you leave the country including the ones that come with the approval notices. I your case, contradicting that statement, you will have to hold on to the I-94 that came with your H1B approval notice otherwise you will not have an I-94 associated with H1B when you return back. And there is no 100% clear way to check and verify that you were indeed in H1B status after Oct 1st because you left and re-entered back in L1 and got a new I-94 at the POE. As per theory, your status should automatically change to h1B as of Oct 1st. In case if it did not because your left and retuned back in L1, you will be in trouble in you work for the H1B employer in L1 status or vice versa. To avoid these status confusions, it is advisable that you re-enter back in appropriate visa after Oct 1st. But if you are okay with taking a chance, then go ahead with your plan.

few posts are saying that there is no problem as petition is approved and person is coming back before Oct 1st, when COS will take effect.

[jbareria]

few posts are saying that there is no problem as petition is approved and person is coming back before Oct 1st, when COS will take effect.

Hi imkh4u,

What happened in your case? Can you please share your experience as I will be in same situation this year. Only difference being my employer will be same while I do L1B to H1B COS in US.

I will have to travel to India after my L1B to H1B petition gets approved.
I am in dilemna if I can return before Oct 1st or not. Do I need to get H1B visa stamped and then only return?

Also, I have confusion on what I-94 to submit while leaving US etc (same as yours).

[raghvi]

If you have done an L1b to H1B COS and it is approved , it means you would have received a new I-94. While going out of US you should return all I-94s in your possession at the exit point otherwise your exit record might not be correctly updated.

With that said, if you have done a L1B to H1B COS then I am assuming your L1B would have expired or about to expire and your company would want you to come back and work on H1B (otherwise what was the point of COS) in that case two scenarios can happen, either the H1B was a fresh H1B or the H1B was based on an earlier approved H1B (from some other employer) and the company just did the transfer of the H1B.

In first case, i.e. Fresh H1B, your start date on H1B can only be 01-Oct-2013 or later, in that case you can at most come 1 Week before 01-Oct-2013/H1B start date mentioned in the petition. But you should work only from H1B start date.

In the second case, i.e. your H1B was a transferred H1B the start date can be immediate and you can enter US with approved H1B visa and petition anytime after the stamping.

In both the cases, after you leave US, you should get a new H1B stamping done while outside US and enter with the approved H1B.

This is my opinion not legal advice.