Legal Question in Immigration Law in Texas

I am Ashish Bajpai currently working with TCS (America) for the past 2 year and have worked with TCS India for the past 5 years. I have been deputed to onsite at USA by Tech Mahindra India in 2011 on L1B. in Dec 2013 my L1B visa got expired as my I-94 is valid till Aug 2014 so I am staying currently in USA with my valid I-94. Now this year my employer is filing my H1B for 2015 with Change of Status in order to meet 2 months gap from Aug 2014 till Oct 2014 they advise me they need to file my L1/I-94 extension in July 2014 so if things go good my H1B would be valid from Oct 2014 subject to if cleared from lottery. My worry is USCIS must impose RFE on my H1B application as they must ask how will I manage to stay here from Aug to Oct 2014.

Pls. advise what shell I do whether I advise my employer to file my H1B in consulate processing or they need to file my H1B with COS in Premium category in order to avoid RFE processing, in case my H1B RFE processing extends beyond Oct 2014 and during processing I need to go back to India will they reject my H1B application?

Also Pls. advise if applying H1B in consulate processing can I stay in USA till July 2014 and can go back to India and reenter in USA with having H1B stamped.?


Asked on 2/19/14, 2:08 pm

1 Answer from Attorneys
Marlene Hemmings Marlene Hemmings, Attorney at Law

In general, a person must remain in legal, valid, non-immigrant status during the time a change of status is pending. Moreover, there is no guarantee that an H-1B for the new fiscal year will even be accepted, due to cap limitations. Furthermore, even if the I-129 petition is accepted for the H-1B visa, it would not become valid, if approved, until 10/01/2014. You must remain in valid L-1B status through that time.

Also keep in mind that a person cannot be in L-1B and H-1B status for more than 5 years, combined, so it looks like you are maxxing out pretty soon anyway.

Your employer should have an attorney filing these cases on their behalf, and that attorney should have advised you on all of this already.

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Answered on 2/19/14, 2:50 pm


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