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Changing Status from an L-1 to an H-1B: It Just Makes Sense

Feb03
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Changing Status from an L-1 to an H-1B: It Just Makes Sense

Contributed by Koby Polaski, Senior Attorney, Edwards

For someone on an L-1 visa, especially a worker nearing the maximum amount of authorized stay in the United States, a change of status from L-1 to H-1B might be a smart, strategic decision.

There are a few similarities between the L-1 and the H-1B visa and also several notable differences. Most basically, both visas are temporary and both allow dual intent. Dual intent means that the foreign worker does not need to maintain an intent to return to his or her home country upon the expiration of the authorized stay. The maximum length of time an individual can remain in the United States on an L-1 visa is seven years (five years for an L-1B). An H-1B visa holder can remain in the US for six years.

Although someone in H-1B status can technically only remain in the United States for six years, the American Competitiveness in the Twenty-First Century Act (also referred to as the H-1B Portability Act or AC-21) implemented a critical and hugely beneficial exception to the six-year maximum. Pursuant to AC-21, two groups of H-1B visa holders qualify to extend their visa past the normal six-year maximum. The two groups are: 1) beneficiaries of an approved Immigrant Worker Petition (I-140) who cannot file an application for adjustment of status because the priority date on the I-140 is not yet current; and 2) an H-1B worker whose employer filed a Labor Certification application or an I-140 petition prior to the beginning of the sixth year in H-1B status, provided that application/petition is still pending. In the first case, the H-1B worker can extend his status for three years, and in the second, he can extend his status in one-year increments.

There is no limit to how many times an H-1B worker can use the AC-21 provisions to extend a visa. As a result of the major backlog in may visa categories, someone could feasibly maintain H-1B status for over ten years while waiting for the I-140 priority date to become current.

An additional benefit to an L-1 –> H-1B change of status is that foreign workers in L-1 status are not allowed to apply for a job other than the one for which the L-1 petition was initially approved. This means they cannot transfer their L-1 visa to a different company. In contrast, a worker in H-1B status is able to change employers and jobs at any time.

Clearly, in many cases, there are huge benefits to filing a change of status application from an L-1 to an H-1B. If you are in L-1 status, or if you are an employer with an employee in L-1 status, it is worth exploring this option, especially if your goal is to remain in the United States longterm.

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