L1 to H1 transfer - Visa stamping issue

[Discussion_ID]

Hi,

I converted my L1 to H1 in Oct 2006 - with a change of status. New I94 was sent with the H1.

But I or my new H1 company was not aware that I have to start working in Oct 2006 itself. I shifted over to the new H1 company only in July 2007 - after 10 months. Till then I was working in L1 with the old company.

Apart from this issue all the other documents are in order.

I am going back to India for vacation and I have to get my visa stamping while coming back.

1. Will this be a problem while visa stamping? Is there a possibility of visa stamping getting rejected?

2. What is the best possible option to handle this scenario?

Thanks for your help.

[Discussion_ID]

Hi,

I converted my L1 to H1 in Oct 2006 - with a change of status. New I94 was sent with the H1.

But I or my new H1 company was not aware that I have to start working in Oct 2006 itself. I shifted over to the new H1 company only in July 2007 - after 10 months. Till then I was working in L1 with the old company.

Apart from this issue all the other documents are in order.

I am going back to India for vacation and I have to get my visa stamping while coming back.

1. Will this be a problem while visa stamping? Is there a possibility of visa stamping getting rejected?

2. What is the best possible option to handle this scenario?

Thanks for your help.

[Retro-affect]

One can hold multiple H1, but should not work 2 jobs simultaniously. In your case, though the H1 is approved, you have not used it as you continue to work on L1 and does not violate any law.

If your provide all necessary documents and answer the questions raised by visa officer, I do not think you may face any issues.

Please do get a employement letter from your H1 employer to prove that he still needs you after your return.

Thanks

[Rough Neighbor]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Retro-affect:
... In your case, though the H1 is approved, you have not used it as you continue to work on L1 and does not violate any law.... </div></BLOCKQUOTE>

This is one view. I have my own. And it's not as optimistic.

When the OP ported from one employer to another, add to it "from one visa classification to the next," it constituted a "material change" to his nonimmigrant status in the US.

And of course, the rule of thumb is that an alien must maintain the terms and conditions of her/his "current" nonimmigrant status at all times, otherwise any deviation could bite afterwards.

Failure to work for the new employer within a "reasonable period" from the official starting date of 10/01/2006 may slide, but, to me, the 10-month gap is way too long from being reasonable.

Okay, if the OP will stay put in the US until the renewal or extension of H-1B status, the violation may just be buried in history. Because upon renewal, the USCIS requests just three months of "pay records" around the time of extension filing.

But because the OP intends to go for a consular visa stamping abroad, this might render the situation a whole lot complicated, the "skeleton" might be resurrected.

Aside from employer's proof of ability to pay wages and official Employment Contract, the consular officer for sure would ask for proof of maintenance of "current" status which is H-1B, not the old L-1 which was already "changed." And they aren't content to see just pay stubs, they're also looking for alien's Individual Income Tax Returns these days. There is where, I fear, the violation will come into the open.

Much as I want to, I can't see this scenario that sleek and flawless. I hope it's just me. I wish I'm wrong.

[Discussion_ID]

Thanks a lot for your responses.

[Retro-affect]

Hi Discussion_ID

Can your provide some information for my following questions?

How long is your L1 validity? Why the company converted your L1 to H1?

Thanks

[Discussion_ID]

L1 & H1 are two different companies. L1 is valid for one more year.
I hope this explains your questions.

[Retro-affect]

Thanks for the clarification Discussion_ID. I infer that though your H1 is approved, you never worked for them so far. One can hold multiple L1/H1 at a given point of time and after approval. If you want to switch from one to another, the switch should happen within a resonable time frame. (say 3 months).

If the H1 is approved more than an year ago and you want to switch now, it is better to consult with an attorney and make sure that the H1 is still valid, before trying to switch.

Thanks

[Rough Neighbor]

Pardon me, but I think you don't see the OP's actual situation. He has already ported and changed status (L1 to H1) to another company with starting work date of 10/01/2006, but he started working for his new H-1B employer in July 2007 - late by about 10 months. Hence, in principle he is no longer eligible for the "concurrent employment" benefit by the two companies.

[Retro-affect]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Rough Neighbor:
Pardon me, but I think you don't see the OP's actual situation. He has already ported and changed status (L1 to H1) to another company with starting work date of 10/01/2006, but he started working for his new H-1B employer in July 2007 - late by about 10 months. Hence, in principle he is no longer eligible for the "concurrent employment" benefit by the two companies. </div></BLOCKQUOTE>

One can apply for H1 transfer, but can still continue with the same employer for various reasons. In this case, though he applied for H1, it is not effective and his previous L1 will be considered as still valid.

You may check this fact in various employment visa web sites.

[Rough Neighbor]

Just for the sake of this discussion, I would want to double-check. Are we still talking about the exact same subject of this thread?

The OP had this to say when he opened this particular topic:

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Discussion_ID:
I converted my L1 to H1 in Oct 2006 - with a change of status. New I94 was sent with the H1.

But I or my new H1 company was not aware that I have to start working in Oct 2006 itself. I shifted over to the new H1 company only in July 2007 - after 10 months. Till then I was working in L1 with the old company. ... </div></BLOCKQUOTE>

Okay, given this information of the OP's actual situation quoted above, let me remind you of the relevant part in Form I-129 where his "current" nonimmigrant status has been determined.

____________________________________________

Part 2. Information about this petition. (See instructions for fee information.)
--------------------------------------------
1. Requested Nonimmigrant Classification. (Write classification symbol):______
2. Basis for Classification (Check one):
a. __ New employment (including new employer filing H-1B extension).
b. __ Continuation of previously approved employment without change with the
same employer.
c. __ Change in previously approved employment.
d. __ New concurrent employment.
e. __ Change of employer.
f. __ Amended petition.
____________________________________________

Now, I can bet all my lifetime saving, tho' not much, before my grandmother's tomb, that the OP's attorney made the following choices:

1. Requested Nonimmigrant Classification: H-1B
2. Basis for Classification (Check one):
e. [X] Change of employer.

Following your logic, you seem to indicate that [d. New concurrent employment.] has been checked when his "change of status to H-1B" has been filed.

Granting that it's true. Another Form I-129 should have been filed to adjust his number of hours of work for his existing L-1 status checking option [f. Amended petition.], because for sure his L-1 employment was on a full-time basis.

I highly doubt if they have gone through such a very big trouble.

So I stick to my original opinion that the OP's status has been changed from L-1 to H-1. And because he also changed from one employer to the next, he should maintain his status by working for his new H-1B employer.