Immigrantly

Immigration thoughts from an Immigration Lawyer.

3 things to be aware of when changing status from L1 to H1B

40 Comments

If you currently hold an L1 visa and want to change your status to H1B visa, or if you are an employer who is planning to hire an L1 visa holder, these are the things you need to be aware of:

1. An L1 visa holder can change his/her status to H1B, but will still be subject to H1B CAP.

“Change of status” only means that the applicant does not need to travel to his/her home country to get a new H1B visa stamp. He/she can change status from L1 to H1B within the United States. But this is a different issue from H1B CAP. If the applicant never had an H1B before, he/she will still be subject to the CAP. So, what usually happens is that one currently works on L1B, on April 1, he/she files an H1B petition. If the petition is approved, the applicant will work on L1B until September 30, and switch to the H1B sponsor company on October 1. If the petition is denied or the applicant was not selected for the lottery, the L1 visa is still valid, provided that the applicant still works for the same employer. Therefore, he/she can try again next year for H1B or seek for alternatives to H1B.

2. The timing of changing the employer is very important.

If the applicant’s employment with the current employer is terminated before September 30, he/she will be out of status immediately; there is no 10-day “grace period” in case of an early termination. If the applicant becomes out of status, he/she may face difficulty applying for a visa in the future, or worse, the Change of Status application will be denied. Therefore, one needs to be careful in changing the employers, and make sure that he/she stays on payroll of the present company until September 30.

3. Be aware of the remaining time on H1B visa.

H1B has a maximum period of 6 years, and this includes any time spent in the U.S. under L1 visa. Therefore, if the applicant has already spent 4 years in the U.S. under L1, he/she will only get 2 year H1B, as opposed to 3 year + 3 year extension. The only way to extend his/her H1B will be to file for green card application soon.

Conclusion:

Either you are the visa applicant or the employer trying to hire the visa applicant, be aware of these often overlooked traps of changing status from L1 to H1B, so that you can avoid unnecessary and unpleasant surprises.

40 thoughts on “3 things to be aware of when changing status from L1 to H1B

  1. Is there a USCIS link which confirms the above

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  2. It is possible to apply L1A to H1B Cap after 6 years completion in L1A with I140 approved?

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  3. This info is helpful. I have a query related to this COS, your response will be helpful.
    I’m on L1 currently (by MNC) and I applied for H1 (through indian consultancy) and my H1 got picked this year.

    1. Exactly what is COS : How can i switch from L1 to H1 employer after Oct1. Is it just by signing I-9 – I would be considered as on H1B visa from that date ? I assume my L1 will be cancelled from same day. I want to avoid any potential risk of going out of status for a day or so. I’m planning to change status staying within US. I’m ok to go to India and get stamped as well if it is considered safe method.

    2. Can I choose to switch to H1B some days/months after Oct1 – Say from Jan next year. Or is it mandatory that I must switch to H1B on Oct1 itself.

    Your response will be of great help. Thank You so much in advance.

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    • Sorry for the late reply. Regarding your first question, if you filed H1B as COS (that means you do not go outside of the U.S. before Oct. 1), then your status will be changed to H1B on Oct. 1. If you work for the same company, just show your H1B approval notice to your employer and do the I-9. If you will change employer, do the I-9 and get paid starting on Oct. 1.

      To your second question, there are some legal debates about this, but basically, if you did COS, it’s most likely that you don’t have a choice but to change your status to H1B. If you did consular processing, you can chose to remain L1 as long as your L1 is valid.

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  4. I am with L1B with my current company. Is it possible that a different company can sponsor my H1B instead of my current company since this new company wants to hire me as an employee? Are there any restrictions with regards to sponsorship from one company to a different one?

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    • Sorry for the late reply. No, a different company can sponsor your H1B, but you cannot start working for your new employer until your H1B is approved. If you are trying to change your status within the U.S., be careful when you tell your current employer about your leave. If they fire you before your H1B is approved, you will be out of status in the U.S. and must leave the U.S.

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  5. Do the petitioner need to be in the current employer payroll for at least 2 to 3 months to apply for COS from L1 to H1, In other words lets say i have L1B visa from company A and from company B H1 visa is approved by USCIS but not gone through consular, now i landed in US with valid L1B visa, can i change my status from l1 to h1 on day 1.

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    • I’m not sure if I get your situation correctly. If you are in the U.S. under L1B visa, and you want to change to H1B, you can apply for the change of status at any time, even from day 1, but you cannot start working for the H1B company until your change of status is approved. If you already have a valid H1B approval from company B, then it will be faster if you simply leave the U.S., get an H1B visa, and come back with your H1B approval notice.

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  6. I was pre selected for the H1B cap this year. Currently I am here in the US under L1B visa. My H1B employer told me that I need to be back in my home country for the H1B visa stamp. Is there any chance that US embassy in my home country will not stamp my Visa. What if I will resign from my L1B employer before September 30, will that affect my H1B? What about my entry to the US since I am only allowed to enter US 10 days before October 1, will that affect my H1B status? If my visa was stamped for H1B, when will my L1B visa cancelled, revoked? My start date for H1B company is October 3, if I go back to my home country and have my H1B visa stamped and be back to US by September 21, and still work for the L1B company until September 30, is that legal or am I violating any US law? What law if any? Many thanks.

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    • First, congratulations for getting selected! Assuming that your L1B and H1B employers are different companies, AND that you applied for H1B through consular processing instead of change of status, here are my answers:

      Is there any chance that US embassy in my home country will not stamp my Visa.
      ->Although rare, it’s possible that they deny your visa.

      What if I will resign from my L1B employer before September 30, will that affect my H1B?
      ->No, you need to leave the U.S. as soon as you resign, but it will not affect your H1B.

      What about my entry to the US since I am only allowed to enter US 10 days before October 1, will that affect my H1B status?
      ->I don’t think I quite understand your concern here. You can enter the U.S. and stay 10 days before your I-797 starting date, but you cannot work until the I-797 date.

      If my visa was stamped for H1B, when will my L1B visa cancelled, revoked?
      ->Usually your L1 visa will not be cancelled or revoked just because you got an H1B visa. However, you cannot enter the U.S. with L1 visa unless you are going to work for your L1 visa employer.

      My start date for H1B company is October 3, if I go back to my home country and have my H1B visa stamped and be back to US by September 21, and still work for the L1B company until September 30, is that legal or am I violating any US law? What law if any?
      -> As long as your L1 is valid, you can work for your L1 company, but you have to enter the U.S. with L1 visa. Also you need to be careful how to switch to H1B after that.

      Contact me at yanli@tomitalawoffice.net if you have more questions.

      Like

  7. My H1B is selected in lottery this year. It was COS from L1B to H1B.

    While my H1B COS is in progress, my wife has got the job and started working on L2 VISA and she has one year contract with the company.

    Now to keep my wife’s job alive, I want to remain on L1B till my I140 is approved on L1B VISA, And after I140 approval is it possible to transfer to H1B VISA again without applying again for new H1B lottery ?

    Can you please suggest, How this is possible ?

    Thanks,

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    • If you have filed COS, your status will be automatically changed to H1B on the date you requested on the application form. You may be able to do an amendment for the H1B to make it a consular processing, rather than COS. In that case, you can keep your L1 status as long as that’s valid, and change to H1B (by going abroad and apply for a visa) whenever you are ready.

      Liked by 1 person

  8. Hi,
    Currently i’m working on L1B .My petition got picked up in the lottery this year,and my employer applied the petition as COS(L1 to H1).But,as per the assignment i should have to be here till November 30th(but,my visa expires in 2018).Can you please answer my following questions.
    1)If my H1b is approved before september 30th, I should not work on L1 the day when it is approved?
    2)If my H1b is approved after October 1st, the day when it is approved , from the next day on wards i should not work?
    Can you please suggest till what day i can able to work without any legal issues.
    Thanks,
    Ambigous

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    • Are your L1B employer and H1B employer the same employer? What do you mean by you have be “here”?

      Your H1B should start no earlier than Oct. 1st. And your status will be automatically changed to H1B on Oct. 1st. If your L1B and H1B employers are the same employer, you can keep working as long as your H1B position is the same as your L1B one. If they are different employers, you will need to switch to the H1B employer on Oct. 1.

      If the H1B is approved after Oct. 1, whatever the validity period on the Approval Notice will be when your status changes from L1B to H1B.

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  9. Hi,
    I am working here in USA with L1B visa with MNC, i have got H1B COS approved from another employer, with Start date as 01st Oct-2016 on I-797A along with I-94 copy which is also valid from 01 Oct- 2016 till 19 Sept 2019.

    What if my current employer terminate my employment before 30 Sept -2016, lets say around 20th Sept-16. Is it allowed for me to stay (Without Work) for next 10 days before continuing on H1 with New Employer. As with the termination, if i have to leave USA, it is not possible to do overnight due to other matters which need to sort out. In this situation, can i benefit from fact that I am only allowed to enter US 10 days before October 1. My work will start only on 3rd Oct-16

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    • Unfortunately, there is no 10-day grace period for early termination of L1. So, legally speaking, once you are terminated, you lose your L1 status. Your H1B will still be valid from Oct. 1. So, you can leave the US, get an H1B visa, and come back 10 days before Oct. 1. As you know, you won’t be able to work until Oct. 1.

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  10. Hi,
    I am in a tricky situation and need your help.
    I am currently in US on L1 visa and it is valid till 2018. I applied for H1B visa through a company this year under premium processing and with Change of Status(COS). The H1B visa is already approved with COS effective on Oct 1st. But, I need to travel my country in Nov for few weeks for an urgent personal reason and hence, want to stay on L1 for sometime and planning to join the new company after the visit. I am planning to come back from the trip to India on L1 visa only. Since COS from L1 to H1 is effective on Oct 1st, I was advised to travel out of country (like Canada , Mexico) before 1st Oct and reenter to US after 1st Oct on L1 visa so that I can continue working on L1 and travel to my country on L1 and and return US on L!. I have few questions on this and I need your suggestions.

    1.I would like to know if travelling out of US before Oct 1st and coming back after Oct 1st a full proof method to stay on L1 and what are the chances that I will be denied entry at the Port of entry of US?

    2. After my trip from my home country and re entering US again on L1 in Dec 2016, How can I transfer from L1 to US by staying in US?
    Can my employer file a new change of status again since I abandon the previous COS approval or Do I need to travel to my home country again to get H1B visa stamped?

    3. If I have to travel my home country for H1B visa stamping, Can I still be employed with my current employer on L1 visa?
    Will US consulate approve H1B visa stamping while I am still employed with my current employer and with a valid L1 visa? Any chances of rejecting H1b visa stamping?

    4. I have to serve 14 days notice period with my current employer. If my H1B visa stamping is approved( with related to Question # 3), Can I return on L1B visa again to US, resign my job, serve the notice period, go out of US and re-enter on H1B so that I can start working for the new employer?

    Please advise.

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    • Do you have to keep your L1 job while you are in your home county? If not, it seems to me that the easiest way to go is to give the 14 days notice before you go home (make sure your flight is on the last day of work or before that), get your H1B visa while you are home, and return to the U.S. with your H1B and start working for the H1B employer.

      Here are the answers to your questions.

      1.I would like to know if travelling out of US before Oct 1st and coming back after Oct 1st a full proof method to stay on L1 and what are the chances that I will be denied entry at the Port of entry of US?
      –>It is a commonly used method, but there is always a chance of not being able to return to the U.S. once you leave the U.S., though the chance is not so high.

      2. After my trip from my home country and re entering US again on L1 in Dec 2016, How can I transfer from L1 to US by staying in US?
      Can my employer file a new change of status again since I abandon the previous COS approval or Do I need to travel to my home country again to get H1B visa stamped?
      –>Your H1B company can file another COS for you. But if you want to travel abroad after that, you must get an H1B visa stamped.

      3. If I have to travel my home country for H1B visa stamping, Can I still be employed with my current employer on L1 visa?
      Will US consulate approve H1B visa stamping while I am still employed with my current employer and with a valid L1 visa? Any chances of rejecting H1b visa stamping?
      –> Yes, you can get an H1B visa even if you are working with your L1 company, as long as you are planning to work for your H1B company soon.

      4. I have to serve 14 days notice period with my current employer. If my H1B visa stamping is approved( with related to Question # 3), Can I return on L1B visa again to US, resign my job, serve the notice period, go out of US and re-enter on H1B so that I can start working for the new employer?
      –> Yes, you can do that, but you need to be careful when you enter the U.S. The officer may think you want to enter with your H1B visa. So, you should explicitly tell the officer that you are going to work with you L1 employer.

      Give me a call if you would like to discuss this further. 949-209-9448.

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  11. Hi,

    I want to know the L1B to H1B COS process.

    I am currently on L1B VISA and had applied for my H1B this year. My H1B employer told me that my H1B is selected in lottery but they didn’t give me any receipt no for tracking.

    I have following queries,

    1. If my L1B to H1B COS got approved, how will I know if they don’t give me any document before joining them ?

    2. One of my friend told me that USCIS will send my COS to my home address and not to the employer. is this true ? If this is true, then by which date should i receive my COS/i94 ?

    3. How to receive L1B to H1B COS and other documents from my H1B company ?

    Thanks for your help in advance.

    Thanks,

    Like

    • Hi, please see my comments below:
      1. If my L1B to H1B COS got approved, how will I know if they don’t give me any document before joining them ?
      ->You should ask them for your approval notice, or at least a receipt number so that you can track your H1B application status.

      2. One of my friend told me that USCIS will send my COS to my home address and not to the employer. is this true ? If this is true, then by which date should i receive my COS/i94 ?
      ->It depends how the application form is filed, but usually notices from USCIS will go to only the lawyer and the employer.

      3. How to receive L1B to H1B COS and other documents from my H1B company ?
      ->You just have to ask your H1B company to give you the documents. Let them know that you are excited to work for them, but you need to give prior notice to your current employer to leave, so you need to know what’s going on with your case so that you can properly start working for them.

      Good luck! And let me know if you have any other questions.

      Like

  12. Hi
    I entered US in July 2016 on H1B visa
    I have following 2 questions:
    1) Can I apply for L1A visa with the same employer(in order to give my spouse a chance to look for job opportunities)

    2)After couple of years ,is it possible to switch back to my existing H1B ?
    If yes, In this case will the H1b will be valid for the remainder time(6years-time on L1) ?

    Like

    • Hi, please see my comments below:

      1) Can I apply for L1A visa with the same employer(in order to give my spouse a chance to look for job opportunities)
      ->Yes you can, assuming that you qualify for an L1A visa.

      2)After couple of years ,is it possible to switch back to my existing H1B ?
      ->Yes.

      If yes, In this case will the H1b will be valid for the remainder time(6years-time on L1) ?
      -> Yes. For example, if you work under H1B for 1 year, then switch to L1 for 3 years, then you can switch back to H1B and work for 2 more years. And then, since L1A gives you maximum of 7 years, you can switch again to L1A and work for the remaining 1 year.

      Liked by 1 person

      • Thanks for your reply.. I have one more query regarding L1B application.
        My colleague has worked 7 years full-time in company A until June 2016. He has worked 4months in company B(from June 2016-Sep 2016) and now he has joined back company A from Sep 2016. Is he eligible for L1B visa application in 2016?, given he has not worked continuously in company A from last 12 months but has worked previously for 7 years?

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      • No, the maximum period for L1B is 5 years, and in order for him to reapply under L1B, he must be physically outside of the U.S. for at least one year before he is eligible for L1B again.

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  13. Hi , Sorry I might not have been very clear but my colleague has never been to US on any visa before. His entire work experience is outside US. Basically my question was about regarding his eligibility to apply for L1B visa ,as he has not worked continuously in Company A from last 1year but has worked for the same company previously for 7 years.

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  14. Hi,
    My employer has applied the H1-B as COS(L1 to H1).If the case is approved , do i need to change the current employer(My H1b is from different employer) immediately(means, from the next day on wards the day when it is approved).Or do i have time to give the notice to the current employer?
    Thanks,
    Ambigous

    Like

    • Hello. Even if your H1B is approved now, your status will change on October 1st. So, you will have some time to give notice to your current employer. Have you checked with your H1B employer whether or not they have received a result?

      Like

  15. Hi I have applied for my VISA change from L1A to H1b, however on USCIS as on today Sep 26, 2016 it is still saying case has been received.
    1. So Should I be worried if my current employer is asking to go back to home country by October 30?
    2. In case my H1b is approved in next few days will my previous 2years stay be counted for green card application under EB1 category?
    Please suggest, Thanks.

    Like

  16. Hi Yan,
    Me and my wife are working on L1A & L2+EAD visas respectively and are willing to switch to H1B visa through new employers.

    1. If I get through the lottery and my wife doesn’t, then will I be able to delay my H1B stamping as my wife will be out of employment as soon as I move to H1B ?
    2. Should I apply as COS first and then request for change the petition to consular processing if above situation occurs ?

    Can you please recommend the best way for the both of us to switch to H1B (together or one by one)

    Thanks in advance!

    Like

    • Hi,

      1. If you apply through consular processing, not COS, then you can delay your starting of H1B as long as your L1 is valid.
      2. Technically you can do that, but it will cost you more to do an amended petition.

      Like

  17. I am currently on L1 visa for company “XX”. my H1B got selected in 2016 lottery which is applied by same company “XX” and it got RFE on 10/06/2016.after H1B is selected I had traveled to India during may 2016 for new L1 visa stamping as old L1 visa is expired.
    company “XX” announced lay offs and i may get laid off OR asked to go back and will be on company “XX” payroll till end of December 2016.is the current H1B which is unapproved with RFE can be transferred to another company “YY” and work for it?

    also attorney of company “XX” informed me on 10/14/2016 that RFE can be cleared but “The only thing personal to you is that they observed your trip to India(L1 visa stamping), so they will not be granting an I-94 with change of status in the US. You would need to travel and stamp with the H-1B to get into H-1B status.”.

    assuming that company “XX” H1B will be approved, can this be transferred to another employer “YY”?
    even if it gets transferred, is it possible to start working for new Company “YY” on this H1B immediately with out getting stamped in home country? OR do i need to travel to India for stamping and then only i can start working for new company “YY”?
    is there anyway i can avoid travel to India and start working on this H1B ASAP?

    appreciate quick reply.

    Like

    • Very interesting and difficult questions!
      The key issue here is whether Company YY can apply as “CAP exempt” for you, even though you don’t have a H1B visa or H1B status. And this is actually an issue debated among immigration lawyers. Some say that as long as you have H1B approval, you can file as”CAP exempt,” and others say that you must have either a visa or be in H1B status at least for 1 day. The law is not very clear about this point.

      In your case, assuming you will get an approval with Company XX, it’s likely that you won’t be able to change your status within the U.S. from L1 to H1B because you have traveled with L1 while your H1B was pending. Therefore, if you want to ensure that Company YY can apply as “CAP exempt” for you, you need to get a H1B visa with Company XX’s approval, come back and work with Company XX for your remaining time with them, and transfer your H1B to Company YY.

      However, if you really don’t want to travel abroad, and are willing to take some risk, Company YY can file an H1B for you now, claiming “CAP exempt.” If it’s approved, you can start working with Company YY from the approved start date. If denied, you can still try the first option described above, assuming you are still needed by Company XX to return to the U.S. for work, even for a short period of time. Keep in mind though, this option will be financially burdensome for Company YY, so you may need to negotiate with them.

      Let me know if you have more questions, and best luck to you!

      Like

  18. Hello,

    I have a few questions around this: “If the applicant never had an H1B before, he/she will still be subject to the CAP.” I am currently on L1B since Feb of this year but I was on H1B during 2006-2007 with a different employer.
    1) Since I was outside the US for over 8 years, I’m guessing I will be subject to the CAP. Can you please confirm one way or the other?
    2) Assuming I am not subject to the quota and a 3rd company files for renewing the old H1B, how much time will I have on the new H1B before my 140 is approved? Is it 6 years minus (time on old H1B + time on L1B)?
    3) I’ve read that there’s no way to extend L1B beyond a max of 5 years. Is switching to H1B my only option irrespective of whether or not my current company gets me 140 approved?

    Like

    • I’m sorry for the late reply.
      1) This is actually a disputed area of immigration law. Some lawyers say you will and others say you won’t. I personally think you should not be subject to the CAP if you haven’t worked for 6 years.
      2) Yes, it’s 6 years minus (time physically in the U.S. under H1b + time physically in the U.S. under L1).
      3) That’s right. The only way to get another L1B is to spend a whole year abroad and apply for a new L1B. Then you will have another 5 years.

      Like

  19. Hello,

    I am working in USA on L1 B visa with Company X, and my I-94 expires on Nov 12th. Company X has filed my L1 B extension on October 21st, but I have not received any Receipt Notice from USCIS yet.
    Meanwhile, I filed H1 B this year, with an employer Y, and the H1 B is in RFE status.

    Can you please advise what happens if approval for H1 B comes after the I-94 expiry date of 12th November. Am I allowed to work for Company Y, without leaving US/going for stamping once the H1 B approval is received.

    Like

    • Good question…I can think of two situations, assuming your H1B was filed as COS, not for consular processing:
      1. The USCIS may approve your H1B and deny your COS, in which case you have to take the approval notice to abroad to get a visa and reenter.
      2. The USCIS may wait for your current L1 extension approval, and approve your H1B COS.

      If possible, you should ask Company X to expedite your L1 extension.

      Like

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