Changing status: L1B to H1B conversion
If you are an L-1B visa holder in the US, you may be looking to convert to the H-1B visa.
The L-1B intra-company transferee visa allows entry into the US for foreign skilled professionals who are qualified as managers, executives or with some “specialized knowledge” in their field, vital to the operation of the US business.
The H-1B similarly permits skilled non-US citizens to work in the US, but also affords wider advantages over L-1 visa status, making a change of status (CoS) from L-1B to H-1B desirable for L-1 visa holders.
You can apply for a change of status (CoS) from L-1 to H1B from within the US, without the need to return to your home country.
However the USCIS process for converting from L-1B to H-1B status is not always straight-forward, particularly given the uncertain nature of the H-1B application process.
Considerations of L1B to H1B conversion
The H-1B status offers foreign workers in the US a number of advantages over the L-1 program.
- L-1 visa holders have to remain employed in the role and for the employer as granted in their L-1 application. They are not permitted to apply for another job with another employer under their existing L-1 status. With H-1B status however they can change employers, provided they qualify to sponsor you. It is possible for an L-1B to H-1B change of status to be applied for under the same employer but different role, or where you have found qualifying employment with another organisation.
- Another key concern for L-1 visa holders looking to transfer to the H-1B is that the H-1B 6-year maximum period will include any time you have already spent in the US under the L-1 visa. For example, if you have already been in the US for 2 years on the L-1 visa, this leaves 4 years for the H-1B (including the 3-year extension). In these instances, you may want to look at Green Card options sooner to secure your leave to remain.
- The most fundamental issue is that the H-1B visa is subject to an annual cap, which year on year is substantially over-subscribed. This means there are a limited number of H-1B visas available each year, and there will be no guarantee that your H-1B application will be granted, even where you have found qualifying employment. L-1 visas, however, are not subject to quotas.
- You must ensure you retain a valid immigration status throughout. If you are successful in your change of status application, you have to remain employed by – i.e. on the payroll of – your L-1 sponsor up to the commencement of your new visa (October 1st) to avoid becoming ‘out of status’, as in these circumstances, there is no available grace period.
You should not, for example, quit your current role until you have approval of the change of status, and agree with your L-1 employer the date of termination of your contract will be September 30th, aligned to the H1-B program.
If you do fall out of status, there is a risk your change of status will be denied, and you are likely to face problems with any subsequent USCIS applications.
Change of status process
There is no flexibility with the timings of the H-1B application process. The H-1B application window opens in the first week of April, for roles that will commence the following October 1st. Your application and any subsequent successful change of status and new employment have to fall in line with these timeframes.
The first step, if you are not looking to transfer to the H-1B under the same employer, is to find an employer who will sponsor you.
Your sponsor is required to file the H-1B petition on your behalf, and submit supporting documentation. This will include an employment letter detailing the duties and responsibilities of your role, dates of employment and details of the wage to be paid, among other key information.
Your sponsor also has to submit a Labor Condition Application (LCA/ ETA Form 9035E/ 9035) to the Department of Labor to confirm compliance with the requirements of the H-1B scheme.
If you are granted petition approval for the H-1B program and Change of Status, the Department of Labor will return to your new employer a certified copy. All the necessary documents (including Form I-129, experience and employment agreements) should be sent to the appropriate USCIS service center. You will be permitted to start work in the following October.
You are permitted to remain in the US and continue to work under your L-1 visa until your change of status takes effect on October 1st, but as stated above, it’s important that you remain compliant with your L-1 visa conditions up to the 30 September preceding your H1B employment.
If your application is denied, you are permitted to continue to work in the US while your L-1 status remains valid and provided you continue to meet the terms of your L-1 visa, ie you are carrying out the same role for the same employer.
While your L-1 visa remains valid, you can also apply again at subsequent H-1B windows, or consider alternative visa options.
Need help with an L1B to H1B conversion?
Navigating USCIS processes is generally complex, and a Change of Status from L1B to H1B can present difficulties, given the wider strict demands of the H1B application and eligibility, while ensuring you remain compliant with your existing L1 status.
As specialist US immigration attorneys, we help individuals and employers assess the available immigration options to meet specific requirements, and to meet the demands of USCIS application protocol, including for L1B to H1B change of status (COS).
Whether your situation is best suited to changing your status from L1 to H1B, seek advice. Beyond eligibility, there are wider implications of this change if status, for example, whereas L1 status does not require a minimum wage, H1B workers are taxed on the rate determined by the Labor Department. We can look at your circumstances and provide an appraisal of your position and immigration options.
The US immigration attorneys at NNU Immigration are specialists in the L1 visa scheme. We help employers and individuals, guiding through the petitioning process. We also support with successive petitions for extensions and change of status applications.
If you have a question about the L or H1-B visa, or any other US immigration-related matter, please contact us for advice.
This article does not constitute direct legal advice and is for informational purposes only.
Last updated: 13 December 2019