Help needed with L1A conversion and H1B process happening together

[brgrden]

Sirs -

My closed friend is in a fix and needs help. His L1B to L1A conversion was filed last month in April '12 end and another company just applied for his first time new H1B. He is worried about the last action rule. His L1B visa ends next month along with his I-94.

What are his options to work on h1b from oct-1 and avoid getting converted back to L1A? His 4 month old baby girl has been advised to avoid air travel due to breathing issues.. can he somehow try to be here and switch to H1 since he's waited long for this opportunity to work for the other employer. I am worried for him too. Pl help.

[shervin143]

I guess he filed the H1B as a COS to L1 based on the pending L1A extension. If not, the chnaces of H1B getting approved as a COS is very less (If filed based on the L1B I-94 rather than the pending L1A extension). However, the last action rule will come into picture if both L1A and H1B gets approved with new I-94s. If L1A becomes effective last (after H1B effective date which will be Oct 1st or later), then his status will be L1A and he should leave the country and return back in H1B visa to work for the H1B employer. Or, he can continue to work for the L1 employer and ask the H1B employer to file an amendment to chnage the status from L1 to H1B. It will take 2-3 months to get the response in normal process and 15 days in premium. He cannot work for the H1B sponsor until the COS gets approved.

[brgrden]

Thanks a lot Shervin! This does help clarify a lot. His H1 has been filed based on his left over L1B visa and i-94 and not on L1A conversion.

Can the amendment be filed even after the cap is over?

I think he can only hope that his L1A result comes before H1. Otherwise, the point about requesting the H1B employer to file for an amendment of status from L1A to H1 to avoid traveling of the states may come to his rescue...

[shervin143]

His H1 has been filed based on his left over L1B visa and i-94 and not on L1A conversion.
>>> Well, in that case, the chances of his H1B getting approved with a new I-94 is very less. The petition might get approved for consular process.

Can the amendment be filed even after the cap is over?
>>> Yes. Amendment has nothing to do with CAP. If you have an approved H1B, then amendment can be filed since the approval petition means the person is counted against the CAP. In order to file the amendment to get the status changed to H1B, the L1 I-94 should remain valid. If L1A is rejected, then an amendment is not possible.

I think he can only hope that his L1A result comes before H1. Otherwise, the point about requesting the H1B employer to file for an amendment of status from L1A to H1 to avoid traveling of the states may come to his rescue...
>>> Read the above answer.