L-1B to H-1B Change of Status approved

[cptbaseball]

Hi attorneys,

I came to US on L-1B visa with expiry date of Nov-28-2009. My same company this year filed H-1B with COS using Premium processing. My H-1B and COS has been approved now.

Q#1: My question is that can I travel to & back from India from Aug-2-2009 to Aug-19-2009 and enter Port of entry on my L-1B visa?

Q#2: When I come back I will enter on L-1B visa, will this abandon my approved COS and H-1B?

Q#3: If I travel based on Q#1 and Q#2 will I still be automatically converted to H-1B on Oct-1-2009? Actually I prefer to switch on to H-1B from Oct-1-2009???

Q#4: Since I will get a new I-94 when I enter USA on Aug-19-2009 what happens to my COS I-94. The number may be conflicting. Is that a problem?

Q#5: Next year that is Dec-2010 I have travel plan to India again, which I-94 will I submit when I leave USA?

Q#6: Next year (Dec 2010) when I leave for India, I would need visa stamping? Will this travel in Aug-2009 affect it? Can the Visa Officer just make it an issue?

Q#7: Will I have any out of status issue in the future that may jeopardize, any future visa stamping or my GC process by traveling in August 2009?

[desi3933]

Originally Posted by cptbaseball

......

My H-1B and COS has been approved now.

Q#1: My question is that can I travel to & back from India from Aug-2-2009 to Aug-19-2009 and enter Port of entry on my L-1B visa?

......

Since your H-1B change of status is approved, you are in H-1B Status now. In order to continue working on H-1B status after overseas trip, you must enter USA using H-1B visa stamp. This may require you to apply and get new H-1B visa stamp.

Please consider getting professional advice from your attorney before making any travel plans and what visa to use for re-entering.


______________________
Not a legal advice.
US citizen of Indian origin

.

[cptbaseball]

Originally Posted by desi3933

Since your H-1B change of status is approved, you are in H-1B Status now. In order to continue working on H-1B status after overseas trip, you must enter USA using H-1B visa stamp. This may require you to apply and get new H-1B visa stamp.

Please consider getting professional advice from your attorney before making any travel plans and what visa to use for re-entering.


______________________
Not a legal advice.
US citizen of Indian origin

.

H-1B is approved from Oct/1/2009. Currently I should be on L-1B. As per this article, I think I can travel without jeopardizing my future status. They call it the 'Hernandez letter'. Is this true?

http://www.murthy.com/news/n_cosapp.html

Thanks..

[morchu]

Not true.
Your H1B status starts from the "start date" shown in the COS/H1B approval notice. If the H1B is approved for this fiscal year, most probably it will be October 1, 2009. So till then you are in L1.

Also nothing prohibits you from re-entering on a valid L1 visa, but after re-entry you are assumed to be in L1 status. And you might end up filing COS petition one more time.

Now your question is interesting, because you are re-entering in a period of your L1 validity and I assume H1 is not valid for status till 2009 Oct.

I am not really sure about all the possible solutions in this situation. The solution I know is, enter using L1 and file another COS (not a full H1 petition, but just a COS, showing already approved H1).

Answer to OP;s questions are:
1. Yes
2. Might abandon the COS (not sure about this). But definitely your H1 is not abandoned.
3. Not automatic, another COS might be required.
Questions 4,5,6,7 are irrelavant after you file a COS on re-entry.

Originally Posted by desi3933

Since your H-1B change of status is approved, you are in H-1B Status now. In order to continue working on H-1B status after overseas trip, you must enter USA using H-1B visa stamp. This may require you to apply and get new H-1B visa stamp.

Please consider getting professional advice from your attorney before making any travel plans and what visa to use for re-entering.


______________________
Not a legal advice.
US citizen of Indian origin

.

[morchu]

Thanks for pointing this out (Hernandez letter).
It is new information to me.

Originally Posted by cptbaseball

H-1B is approved from Oct/1/2009. Currently I should be on L-1B. As per this article, I think I can travel without jeopardizing my future status. They call it the 'Hernandez letter'. Is this true?

http://www.murthy.com/news/n_cosapp.html

Thanks..

[desi3933]

Originally Posted by cptbaseball

H-1B is approved from Oct/1/2009. Currently I should be on L-1B. As per this article, I think I can travel without jeopardizing my future status. They call it the 'Hernandez letter'. Is this true?

http://www.murthy.com/news/n_cosapp.html

Thanks..

Well, you didn't mention in your original post that COS date is 01/10/2009 and I assumed that COS date was date of approval.

In this case, yes your H1 COS is approved with deferred change of status date of Oct 1st. And Hernandez Letter does cover such scenario.

However, please keep this mind (mentioned in that link)

This analysis was provided by the USCIS in the form of letter guidance. Such guidance does not carry the binding force of law or regulation and generally is given less weight than even a USCIS policy memo.

Since when you come back you will have different I-94 number as compare to I-94 number on COS approval letter. This can cause explanation/issues down the line. Please consult your attorney and have professional advice.

Hernandez Letter does not have binding force of law. This is something difficult to ignore for me. But, that's just me.

______________________
Not a legal advice.
US citizen of Indian origin

.

[roseball]

Originally Posted by cptbaseball

H-1B is approved from Oct/1/2009. Currently I should be on L-1B. As per this article, I think I can travel without jeopardizing my future status. They call it the 'Hernandez letter'. Is this true?

http://www.murthy.com/news/n_cosapp.html

Thanks..

Yes, its true. COS to H1 is not active till Oct 1st, 2009. Which means you are still on L-1B till Sep 30th, 2009. You can travel and come back to US as long as you are coming back on the same visa status you applied a COS petition from to change to H-1B, meaning re-entering on L-1B only. You can't re-enter on say a B1 visa and expect your status to be changed to H-1B on Oct 1st. Your COS petition was applied for L-1B to H-1B, so you should be on a valid L-1B status on Oct 1st for your status to be changed to H-1B. Since you are planning to come back on L-1B visa, you should be good to go. If you return on a different status, you will have to file another COS petition to change to H-1B by appending the already approved H1 petition so you wont be counted again agaisnt the H1 quota.

However, like its mentioned in the Murthy's article you quoted, the Hernandez letter is just a response to a set of questions that were asked and not a law/memo. So incase in future if this causes some doubts on your status, you can just use that letter to defend your situation but it will be upto USCIS to make the final decision. Hope this helps.

[cptbaseball]

Originally Posted by roseball

Yes, its true. COS to H1 is not active till Oct 1st, 2009. Which means you are still on L-1B till Sep 30th, 2009. You can travel and come back to US as long as you are coming back on the same visa status you applied a COS petition from to change to H-1B, meaning re-entering on L-1B only. You can't re-enter on say a B1 visa and expect your status to be changed to H-1B on Oct 1st. Your COS petition was applied for L-1B to H-1B, so you should be on a valid L-1B status on Oct 1st for your status to be changed to H-1B. Since you are planning to come back on L-1B visa, you should be good to go. If you return on a different status, you will have to file another COS petition to change to H-1B by appending the already approved H1 petition so you wont be counted again agaisnt the H1 quota.

However, like its mentioned in the Murthy's article you quoted, the Hernandez letter is just a response to a set of questions that were asked and not a law/memo. So incase in future if this causes some doubts on your status, you can just use that letter to defend your situation but it will be upto USCIS to make the final decision. Hope this helps.

Since you mention that Hernandez Letter is a grey area. To be on a safe side, when I come back on Aug-19-2009 on L-1B, can I file another COS (only COS, not H-1B) with USCIS again with the new 1-94 that I would get at POE. That would ensure now that I am on correct status after Oct 1, but I'm not sure whether this is possible or whether USCIS would decline it stating that it was a duplicate etc.

[cptbaseball]

Originally Posted by desi3933

Well, you didn't mention in your original post that COS date is 01/10/2009 and I assumed that COS date was date of approval.

In this case, yes your H1 COS is approved with deferred change of status date of Oct 1st. And Hernandez Letter does cover such scenario.

However, please keep this mind (mentioned in that link)


Since when you come back you will have different I-94 number as compare to I-94 number on COS approval letter. This can cause explanation/issues down the line. Please consult your attorney and have professional advice.

Hernandez Letter does not have binding force of law. This is something difficult to ignore for me. But, that's just me.

______________________
Not a legal advice.
US citizen of Indian origin

.

Since you mention that Hernandez Letter is a grey area. To be on a safe side, when I come back on Aug-19-2009 on L-1B, can I file another COS (only COS, not H-1B) with USCIS again with the new 1-94 that I would get at POE. That would ensure now that I am on correct status after Oct 1, but I'm not sure whether this is possible or whether USCIS would decline it stating that it was a duplicate etc.