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L1A to H1B Transfer and GC Processing Queries

Pleasanton, CA |

I came to US with an L1A Visa for Company A on Sep 2010 and went back to India on Sep 2012.
I have re-entered US on L1A Visa on Feb 2013 where my L1A visa was expiring on Aug 2013
and got I-94 till Feb 2016.
Company B has initiated my GC processing(EB2) in Nov 2013 and is planning for H1B in Apr 2014.
My spouse is on L2 EAD and is planning to move to H1B with Company B or C in Apr 2014.

Questions:

1.If my Labor gets approved in 2014 what are the pre-requisites for applying for I-140 for Company B.
Should I have H1B Visa approved in order for Company B to apply for I-140 ?

2.Can I still continue in L1A ( for Company A) if my H1B gets approved in 2014 ( for Company B).
If yes How ? What are the implications of doing so ?

3. If my H1B is rejected in 2014 will Labor be still valid ?

Attorney Answers 3


  1. Please address these "queries" to the employer's immigration attorney. Part of their responsibility is to talk to you and advise you.

    The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter,not should it be viewed as establishing an attorney client relationship of any kind.


  2. 1. None other than an approved PERM, the employer's proof of it being able to pay the proffered wage mandated by DOL and your proof of meeting the job's educational and/or on the job experience requirements. The ability to pay requirement on the employer "attaches" on the year your "priority date" is established and continues thereafter until the very date in which you are admitted to permanent residence.
    2. Yes. No "implications". The PERM and I-140 are job offers for the future. There is no requirement that you currently work for the petitioning employer.
    3. Yes, Labor is an animal of its own, with no relation and independent of the H-1B. (For ":Labor" to continue to be valid, however, employer is obligated to file an I-140 petition no later than within 6 months of the Labor certification's approval.)

    Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.


  3. Direct all questions to Employer B's attorney, who is best placed to advise you as they have your documented immigration history. If completely non-responsive, notify the employer.

    Co. B should be capable of paying the offered salary when filing I-140 and should intend to employ you for an indefinite term in the future (when you receive your green card).

    You are not required to be employed by Co. B in the interim.

    The GC process through employer sponsorship can continue even if you are not present in the U.S. or employed elsewhere, but you cannot remain legally in the U.S. solely on the basis of PERM/I-140.

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