L1-B is getting maxed out in march 2013. Question on filing H1-B

My L1-B is getting maxed out in march 2013 (after claiming all my vacations). My plan is to go out of the US in March 2013 and come back with H1-B in Oct 2013. 1- can I file an LOS L1 to H1 after my L1 visa is maxed out? 2- since I am leaving US in March 2013, can My company file my H1 in April 2013 from US? 3- if I come back to US in H4 on vacation, will it negatively impact my H1 visa processing?

Los Angeles, CA -

Attorney Answers (3)

J Charles Ferrari

J Charles Ferrari

Immigration Attorney - Los Angeles, CA
Answered

1. What is LOS?
2. Yes
3. No

Your H-1B will be limited to one year.

Your employer needs to retain an experienced immigration lawyer, whether myself or one of my colleagues, to review all the facts, advise them, and handle the case.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not... more
Haroen Calehr

Haroen Calehr

Immigration Attorney - Houston, TX
Answered

1. I guess you're asking about a COS-Change of Status? The max period of stay on an L-1B is 5 years. You will have to remain outside the US for 1 year before you become eligible for a brand new period, i.e. 6 years on an H-1B. But you can get 1 year on H-1B if you only have had 5 years on the L-1B. But you can't claim the other 5 years until you stay outside the US for 1 year.
2. You can but only get the 1 year maximum plus additional time until October, so if you leave in March and enter on September 30, 2013, you approximately 5 1/2 months of being outside the US, but USCIS will probably give you 1 year validity on the H-1B and then later you can recapture this, but max would be 17 1/2 months on your H-1B.
You can switch to other non-immigrant visas, like the H-4, O, E, etc but the only way to get a new time is to physically be outside the US. So, if you qualify for an O visa, max stay is 5 years, you can remain here, but you can't later after that 5 years, switch back to an H-1B since you are max out. You got to physically be outside the US for 1 year to get a fresh start for an H or L.
3. Not negatively but it will eat into (take away) from your 1 year max time outside the US.

F. J. Capriotti III

F. J. Capriotti III

Immigration Attorney - Portland, OR
Answered

Mr. Calehr gave an excellent analysis.

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It... more

Related Advice

Questions? An attorney can help.

Ask a Question
Free & anonymous.
Find a Lawyer
Free. No commitment.