In view of a few leading IT companies coming under a cloud of uncertainty recently, we have been getting calls from anxious employees, who are on L1 status, exploring options for change of status to H-1B.
Option One:
If the person has ever been on H-1B classification within the past six years and has not stayed outside the US for a period of one year or more since getting the H-1B status, he/she is eligible to change status to H-1B right away, i.e., an employer can file an H-1B petition with change of status from L-1 to H-1B.
Option Two:
Find an Employer who is exempt from H-1B quota cap and have them file an H-1B petition with change of status right away. Of course, such petition has to be approved before the individual can work for the new Employer.
Since most persons may not find the either of the above options available and/or feasible, the next option is to have a cap-subject H-1B petition file on April 1 to start employment on October 1. If such an employer is found and the Petition could be filed on April 1, these are the possible scenarios, depending on the individual's visa validity and status of employment:
Scenario 1:
The individual has to leave the US before April 1st: Have the employer file the H-1B petition on April 1, for Consular Processing. The H-1B gets approved and sent to the Consulate overseas; the individual gets the H-1B stamp and returns to the US to start working for the H-1B employer on October 1st.
Scenario 2:
The individual has L-1 validity up to or beyond September 30th and he/she will be in the US on L-1 status until September 30: Have the new employer file the H-1B petition on April 1 with a change of status to H-1B. If this petition is approved, the individual gets a new I-94 with the H-1B validity dates. If he/she has maintained valid L-1 status until September 30, he/she can start working the for the H-1B employer on October 1 without having to leave the US.
Scenario 3:
The individual assumes the Scenario 2 above, but loses the job and/or L-1 status before September 30 (i.e., after filing the H-1B change of status petition) and has to leave the US: Two things can happen:
a) The USCIS finds out that the individual has left the US and asks the employer (through a Request for Evidence, or RFE) to name a Consulate where to send the approved H-1B. The employer responds appropriately, and the H1B gets approved, sent to the Consulate, and the individual gets the visa stamp and returns to the US to start employment on October 1st.
b) The USCIS approves the H-1B petition with change of status, giving new I-94 with new validity dates: Still, since the beneficiary is overseas, the H-1B has to be stamped in his/her passport before he/she can come back to the US to begin working for the H-1B employer.
In all the above situations, please be mindful of the fact that an individual can remain in the US for a total of six years on L-1 and H-1B status combined. H-1B status for a seventh year and beyond can be obtained depending on whether and when a Labor Certification application or an Immigrant Visa petition has been filed on behalf of the individual.
If the individual on L-1 has L-2 dependents in the US, such dependents will lose their status when the L-1 person loses his/her status. If such L-2 dependents are working using EADs, they should stop working immediately on losing L-2 status. They should either leave the US or change status to H4 if and when H-1B status is available to the L-1 person. No EAD is available to persons on H4.
Copyright: The Law Offices of Morley J. Nair, Inc.
Morley J. Nair is the Founder of The Law Offices of Morley J. Nair, located in Philadelphia, PA, practicing Immigration Law in all the 50 states. The firm has processed thousands of H-1Bs and hundreds of Applications for Permanent Residence ("Green Cards"). Attorney Nair offers a free 10-minute consultation to prospective clients. The law firm websites are http://visaworks.com/ and http://h1bplanet.com/.
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