l1b to h1b change of status grace period rule

Change of Status L1 to H1B Grace Period – Rules, Time after Oct 1st? DOL or USCIS ?

In H1B Visa by KumarUpdated : 152 Comments

by Emily Neumann, Attorney at Law

Around October 1st each year, I start receiving calls from individuals in L1 visa status who had been sponsored for an H1B visa with a different employer. They usually want to know if they can keep working for the L1 employer even though they have an H-1B approval. I was asked to answer the following question in this article.

“Can you continue to work on L1 with H1B COS ( change of status) approval after October 1st ? How to continue to work on L1 , without using H1B Visa ?”

To put things in perspective of the exact scenario, let me articulate with an example.

Example of L1B visa holder with Approved H1B Visa  in USA

Mr. Worker was working for ABC International Company abroad for a few years in a specialized knowledge position. Because of Mr. Worker’s special skills, ABC International Company transferred him to their U.S. office on an L1B visa last year. Mr. Worker has been in the U.S. in L1B status for a while and eventually received a job offer from Company X. Since the L1B visa is not transferrable to an unrelated entity, Company X decided to sponsor Mr. Worker for an H1B visa. Company X filed an H-1B petition on behalf of Mr. Worker on April 1st and requested a change of status (COS)  from L1B to H1B to take effect on October 1st.

Mr. Worker’s H1B petition was approved over the summer by USCIS and a new I-94 card was issued for the H1B status starting October 1st. That means, that whether Mr. Worker is ready or not, his status will automatically change to H-1B on October 1st and in order to continue maintaining status, he needs to start working for Company X on October 1st. If he continues working for ABC International Company after September 30th, he will be working without authorization and will be out of status.

Is there a grace period for L1 to H1B Visa Change of Status (COS)?  Any rule by DOL or USCIS?

When I explain this, many people mention that they heard there is a rule about H-1B workers having 60 days to join a new company.  There is no specific USCIS rule regarding this L1 to H1B COS grace period, the rule being referred to is a Department of Labor (DOL) regulation at 20 CFR 655.731(c)(6), which says:

  • “an H1B nonimmigrant shall receive the required pay beginning on the date when the nonimmigrant “enters into employment” with the employer…
  • (ii) Even if the H-1B nonimmigrant has not yet “entered into employment” with the employer…, the employer … shall pay the nonimmigrant the required wage beginning 30 days after the date the nonimmigrant first is admitted into the U.S. pursuant to the petition, or, if the nonimmigrant is present in the United States on the date of the approval of the petition, beginning 60 days after the date the nonimmigrant becomes eligible to work for the employer. “

What does the Department of Labor (DOL) Rule mean to H1B Visa Holders with COS ?

While this regulation does mention a 60 day period, it is important to point out that this provision is from the Department of Labor and is discussing an employer’s obligation to pay wages. It is not an immigration regulation and does not provide any instruction regarding an employee’s immigration status.  Immigration status rules are typically addressed by the USCIS.

There is no grace period for a change of status to take effect. It is immediate and automatic.

What are your options to work on L1 Visa after October 1st and avoid H1B Visa Change of Status?

If Mr. Worker wants to continue to work for ABC International Company after September 30th, he has a few options:

  1. In my example above it is too late for this option, but if the H1B had not yet been filed, Mr. Worker could have requested Company X to file it for consular processing. That means the H-1B petition would be approved, but it would not include a new I-94 card and it would not cause Mr. Worker’s status to change automatically. Whenever Mr. Worker is ready to join Company X, he can either file a new change of status not subject to the cap OR exit the country, apply for an H1B visa stamp and return to work for Company X.
  2. Leave the country and re-enter USA using the valid L1 visa stamp.
  3. Request ABC International Company to file a change of status from H1B to L1 on or after October 1st.

If you are contemplating changing from L1 to H1B visa for next year, then Option 1 is your best option.

If you have already obtained the change of status this year and want to continue working for your L-1 employer, you need to take action quickly to either file a change of status back to L-1 or take a trip and come back using your valid L-1 visa stamp to regain your L-1 status. Continuing to work for the L-1 employer after the change of status (COS) has taken effect can negatively impact a future green card application.

Thanks to Emily for writing the guest article for us. You may reach out to her using her blog ( listed below) for any immigration issue, she is a highly qualified immigration attorney and can help you with your case!

————————————-About the Author————————————–

Emily Neumann practices business immigration law and is a partner in Reddy & Neumann, P.C. in Houston, TX. Neumann writes a blog on immigration law (immigrationgirl.com) and shares updates on Twitter (@immigrationgirl) and her Facebook page to help her clients stay informed of the latest news.

   

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Comments ( 152 )

  1. V Raaghavan

    Hi, this is V Raaghavan.
    I am working on L-1B visa from February 2017 for company A, and
    1. I applied for the H-1B with Change of Status (COS) during the April 2018 through company B, and I received a mail in the month of May 2018, from the H-1B employer (company B) that my H-1B petition got received/picked by the USCIS.
    2. Later in June 2018, I went to Canada (stayed 10 days) for renewal of my L-1B (company A) and I entered back to the USA with the renewed L-1B visa (and got a new I-94 at the port of entry).

    Due to some personal reasons, now I want to continue on the L-1B visa (company A). And I want to know the below inputs from the experts.

    1. As I already travelled out from the USA and joined back the USA, during the pending time of the H-1B decision (as my petition still showing case was received):
    a. If H-1B approves, then will be the H-1B approved with Consular processing? Does this happen in most of the cases like a possibility or consular processing is the only chance (because of the law)?
    b. Even if H-1B approved, then still the USCIS can grant the new I-94 with the COS without any issues?
    c. Can USCIS raise RFE? And asks to submit some extra proofs regarding my 10 days stay outside the USA while the decision is in pending, and if we submit answers, then they can approve the H-1B with COS?

    2. If the H-1B got approved with Consular processing, then I will be good and I don’t have to worry as I can go India for stamping later and change the job whenever I feel comfortable. Am I right?

    3. If H-1B approved with a new I-94, then I have to start working for the new employer. But as I don’t want to choose this path due to some personal reasons, what are the options do I have?
    a. Can I cross the US border and enter back on my L-1B once I got the new I-94 with approved H-1B? If yes, do I have to go to my home country (India) or simply go to Canada/Mexico border and enter the USA and get the new I-94 on L-1B? Is it safe or any risks involved in it?
    b. If the H-1B employer informs me lately regarding the H-1B approval (after October 1st, 2018) and if I stay on L-1B for 1-2 weeks after the October 1st 2018, and if I choose to cross the border and join back the USA on L-1B then will it create any issues ?
    c. Do I have any other options which can make my life safe?

    4. I hope my L-1B visa won’t be invalid rather than the I-94 (that I got on L-1B), even if the H-1B approved with the new I-94.[Based on the answer for the #1 question].

    5. In case, if my H-1B approved with Consular processing and I say no to the H-1B employer (company B) and if the employer revokes the H-1B, then what’s the time period that I have, to find another employer to make the H-1B re-active/transfer?

    I really appreciate your valuable inputs and time.

  2. Nimi

    Hi Saurab,

    I was working on H1b for past 2 yesrs in USA with Company A and my petition is valid till 2018 Dec. 6 Months back I was layed off and I transferred to a consulting company B. As I did not get a project , and I was still on receipt of H1B transfer working for consulting company B got a RFE ob the H1B transfer and also got a project for 3 months
    My consulting applied a transfer for other company C with the client letter , I started working on the receipt of company C , still my H1B transfer petition is under process and My project is getting over, I have all the pay slips till day from company C. So my question is what will happen to my transfer petition for company C as I started searching for a new project.

    Thanks,

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