Expired H1; L1 to H1 - lots of clarifications

B

blumtain

New Member
Hi, sorry if i have so many questions regarding L1 to h1. Here is my situation: I came to the USA using H1B visa (valid from August 15 2003 - December 15 2003; PED is March 31 2006) last August 26 2003 and stayed until December 18 2003 since my I-94 is only until December 31 2003.

After that, I return to USA using L1-blanket (valid from May 20 2004 -May 20 2005; PED is May 10 2007) in January 10 2005 and still in the US since my I-94 is until 2007. I am currently working in the parent company here in US who provided my L1-blanket visa. However, another company (Company-B) is willing to sponsor my H1B visa. My questions are:

1) Since I already had H1B visa before, does that mean company B is really allowed to just tranfer visa and I will not be included anymore in the H1B cap?

2) Since I have the intention of getting a green card, does that mean my 4 months stay for my 1st H1B and my 1 year stay for my L1-blanket already add up to the maximum 6 years of H1B? Can I still get a visa extension after using the 6 years allowed for H1B in case I dont have my green card yet?

3) Does Company B who will sponsor my H1B have the right to refuse or help me get my green card? Can I ask that this be clearly specified in their job offer that they will help me get a green card?

4) Can my current company who sponsored by L1-blanket stop my H1B processing for Company B?

5) Do i need to go out of the USA to have a new I-94/visa stamp for the change from L1-blanket to H1B?

6) I was told that my current company will be notified of my intent for the visa transfer when H1B application is filed. What would happen to me if I got terminated in my current company because of the new visa intent and I still dont have the approved H1B for COmpany B?

7) Company B said they will hire me as regular employee BUT I will have no salary if I will not work. They said what they will pay me is percentage based on what is being charged to the client. How is this going to affect my H1B and eventually if I apply for green card? Will this be a problem? Can Company B really have this kind of job arrangement when they file my H1 visa?

Please help...I dont have that much money to pay lawyers...
 
blumtain said:
Hi, sorry if i have so many questions regarding L1 to h1. Here is my situation: I came to the USA using H1B visa (valid from August 15 2003 - December 15 2003; PED is March 31 2006) last August 26 2003 and stayed until December 18 2003 since my I-94 is only until December 31 2003.

After that, I return to USA using L1-blanket (valid from May 20 2004 -May 20 2005; PED is May 10 2007) in January 10 2005 and still in the US since my I-94 is until 2007. I am currently working in the parent company here in US who provided my L1-blanket visa. However, another company (Company-B) is willing to sponsor my H1B visa. My questions are:

1) Since I already had H1B visa before, does that mean company B is really allowed to just tranfer visa and I will not be included anymore in the H1B cap?

2) Since I have the intention of getting a green card, does that mean my 4 months stay for my 1st H1B and my 1 year stay for my L1-blanket already add up to the maximum 6 years of H1B? Can I still get a visa extension after using the 6 years allowed for H1B in case I dont have my green card yet?

3) Does Company B who will sponsor my H1B have the right to refuse or help me get my green card? Can I ask that this be clearly specified in their job offer that they will help me get a green card?
...
Click to expand...

I did L1 -> H1 4 years ago.

#1. There is no transfer from L1 to H1, so H1 cap will come in picture.
It took me 6 months to get H1 in 2001.
#2. Not sure, but I guess absence from the US is not counted into 6 years.
if so, you have more than 1 year absence between departure with H1 and entry with L1, it may reset your clock. Not sure through.
For H1 extension beyond 6 years, you should have LC pending more than 1 year, which means you have to file LC at least 1 year before H1 expiration.
#3. Yes, they have a right to support or not support your GC.
You need to clarify before join. I asked them to add GC support to offer letter, but I do not know if that one sentense is legally valid.
 
A related question

I entered this country on an L1 that was valid from 7 June 2000 till 6 June 2001 on 9 June 2000 (PED was 5 June 2002)

So far so good. I was issued an I-94 whose date I do not remember!. I had a subsequent trip to India where I surrendered that I-94 and cannot find any copies.

Catch is...I made that trip AFTER the visa expiry date but before the PED date (22 June 2001 to be precise).

I then got an F-1 visa issued in India and then subsequently got a COS to H1.

Now I need to get my H1 stamped in Canada. I have been reading about section 222(G) which states that any previous overstay causes an issue when applying for a visa as a TCN (third country national), which I would be if I were to apply in Canada.

What do you folks think?. The law also says that if a consular officer has any indication I may have overstayed (they dont ACTIVLEY LOOK FOR IT but I do have a stamp on my passport which admits me back into India on 24 June 2001 which would catch anyone's eye) then he can issue a denial under 222(g) and ask me to apply in India.

So I have decided to cancel my Canadian appointment and to apply in India.

Any thoughts from you wise folks?
 
I think one's legal stay is dictated by I94(unless POE officers put wrong expiration date against petition's validity)

I believe visa stamp expiration should not matter as it should be
valid only for reentering the US.

If you overstay I94, the degree of problem is how long it was.

please confirm with lawyer.
 
Last edited by a moderator:
That is the entire issue here. I turned in my L-1 I-94 when I last exited the country and am not able to get a hold of any copies.

And there is an immigration rule INA 222(g) which clearly suggests that although consular officers are not supposed to actively look for overstayers, if they find any reason to suspect that an alien has overstayed, the burden of proof rests on the alien to disprove that.

So even though INS might have no record of me having overstayed, if the consular officer in Canada sees the Indian stamp on my passport with a return date of June 24, 2001 then he would definitely ask me to prove that I did NOT overstay my L1 visa by producing a copy of that I-94. And I dont have that damned thing with me.

So there is a huge risk involved in me applying for a visa as a TCN. 222(g) is much more relaxed when applying for a visa from one's home country.

The sad part about all this is I know (through recollection) that my I-94 expiration date was 5 June 2002 and that I did not overstay but cannot prove it due to not having that copy.
 
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