Dougster75

Quick question: Attorney is suggesting either going L1B to L1A to GC (obviously better if we can get into EB-1) or going L1B to H1B (for extra time) to GC. If we go to H1B, do we have to leave US and if so, how long for. What are the downsides of going this route: Missus can't work, slow, employment vulnerability due to length of time - anything else?

Thanks,

Doug.

lifehouse51

I can see the reason for switching from L1B to L1A, but why bother switching from L1B to H1B? Note that L1B has a max duration of 5 years, and H1B, 6 years, but years in L1 status are counted towards the max duration for H1B as well.

You can switch nonimmigrant status (Eg L1B to H1B) within the U.S., through the USCIS. Note that you probably need a new I-129 Petition for H1B and a I-539 Petition for Change of Status to H visa. If you are working for a private company, you'll be subject to the H1B annual fiscal year cap. The cap for the fiscal year Oct 2010-Oct 2011 is filling up now (Earliest filing date for that fiscal year is Apr 1, 2010). Since the process can take months, it's usually done ahead of time if you anticipate the current status (eg. L1B) to expire soon.

Drawbacks of H1B: Annual Cap that gets filled up quickly, H-4 Dependents cannot work. With a H1B you can work for a certain employer only, but when you change job and if the new company sponsors H1B as well, they can file a new I-129 petition and a petition to change your employer. I believe there has to be less than 10 days gap between your last day for the old employer and the start day for the new employer (Or is it 0 day gap, this part I'm not 100% sure). You can start working once the petitions are filed, even before approval, in this particular situation, due to H1B portability.

Dougster75

The attorney gave the impression that an H1B was "safer" because it could be extended multiple times once certain GC milestones were reached whereas an L1 is finite (if we didn't get accepted for EB-1). I am still going to push for L1A since I was a manager before in UK and I believe could at the very least be seen to be a functional manager in US. Hopefully, with a well crafted petition to adjust to L1A, the H1B will be a moot point... Thanks.

lifehouse51

Max duration for a H1B is 6 years, with the possibility of 1 or 3 year extension at a time:
One year extension if a labor certification application is filed and pending for 365 days (Meaning that it has to be filed before end of 5th year on H1B)
3 year extension if Immigrant Petition is approved but the applicant's waiting for a visa number to be available (For EB-2, the current backlog is for Mainland Chinese and Indian natives)

There's again, the annual cap issue with H1-B, and who knows when the cap for fiscal year Oct 2010-Oct 2011 will be met.

S Folinsky

Comment: There seems to be this curious hesitation for people to get a second legal opinion. In fact, a good attorney will welcome a second opinion -- one attorney may see something that the other missed. Quite often, if the two attorneys discuss it, the first attorney's attorney might be affirmed. Also, there are cases with multiple paths available and the choice of path is a pure judgment call. If the first attorney is offended by a client seeking a second opinion, that is the attorney's problem and the client would be justified in wondering why her attorney is offended.

Observation: The case is, in part, YOUR case, not the attorney's. [The "in part" relates to the fact that the petitioner is also the attorney's client. This goes into the complicated ethical issue of "dual representation."]