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. 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. H-1B registrations must be submitted within the annual application window, usually in March, for positions that will commence the following October 1st. Those registrations that are successful in the lottery must then be filed by the stated deadline, which is generally 90 days from the date of notification.

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 will need to file an electronic registration, and if successful, will be required to compile and file the complete H-1B visa petition. 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 is important that you remain compliant with your L-1 visa conditions up to September 30th, 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.

L1B or H1B differences in visa requirements

For non-US nationals to come to the US to work in skilled roles, the most common temporary visas are the L-1 visa and the H1-B visa. For the US employer and the individual alike, it will be important to understand and assess, out of the H1b visa or the L1, which is better and most appropriate as an immigration route.

Education & qualifications

The H1-B route is typically subject to stricter rules regarding education than the L-1 visa insofar as the applicant’s qualifications and work experience should relate to the visa role.

For the H-1B visa, the requirement is that applicants hold a bachelor’s degree or higher qualification, as well as having specialized knowledge in their specific professional field, and this must be directly relevant to the H1-B role. In some circumstances, relevant work experience could be relied on as a substitute for a degree, but again the experience must correspond to the profession or area of expertise of the H-1B job.

The L-1 visa, however, does not stipulate educational requirements such as requirements for a degree.

Job role

The H1-B visa can offer more flexibility for visa holders than the L1 route in terms of the job and work they are permitted to do while in the US.

The L-1 visa requires the applicant to be in an executive or managerial role, or to possess specialized knowledge specific to the organization. This requirement is heavily scrutinized by visa adjudicators and applicants are advised to prepare substantial and compelling evidence to support eligbility under this criteria.

The H1-B visa holder, however, can generally undertake a broader range of duties, provided the role qualifies as a speciality occupation and that the position relates to the applicant’s work experience and qualifications.

Employer eligibility

The L1 visa is open only to international organisations. It allows employers to transfer employees from overseas to a branch, subsidiary or office of the same company in the US.

To be eligible, the employee must have been employed as a manager, executive, or specialized knowledge worker by an overseas subsidiary, parent, affiliate or branch office of the US company they are transferring to for at least 12 months of the three years immediately preceding the date of application.

It is not possible to transfer to a different company under the same L1 visa. The employee would need to secure new, appropriate status to remain and work lawfully in the US.

Only US-based companies can sponsor foreign nationals under the H1-B visa route. If granted, the visa is valid only in relation to sponsorship by that specific employer. If the H1-B worker finds a new job with a new employer, their visa would no longer be valid. To maintain their lawful status in the US, they would need to file for a new H1-B visa with their new employer as sponsor, or consider alternative visa options that may be available.

Duration of stay

There is not a vast amount of difference in the visa durations.

The L-1A visa, for example, permits an initial stay of up to 3 years. The visa holder may apply to extend this period for a total maximum duration of 7 years. The L-1B, however, permits up to a total maximum period of 5 years, including the initial three-year grant.

With both the L1A and L1B visas, where the employee is transferring to open a new US branch, the period of leave is only one year. The H1B visa also allows an initial three-year stay. This is extendable to 6 years, where a successful application is made.

Any time spent in the US under the H1B visa will be counted towards any L1 visa maximum period, and vice versa for L1 visa stays counting towards subsequent H1B maximum period.

Visa cap

The L1 visa route is not subject to any cap or annual limit on the number that can be issued. The H1B, however, is restricted to 65,000 per year, and 20,000 for those with a Master’s degree and higher.

For successive years, the H1B has been oversubscribed, and the so-called H1B lottery is used to determine which applications will be processed and considered. Petitions should be filed in the H1B visa window, typically in the first few days of April. H1B visas that are successful through petitioning cannot, however, take effect under the following 1 October.

Department of Labor Certification

The H1B petition process requires the employer to file a Labor Condition Application to confirm the visa holder will be paid at or above the prevailing wage rate and that there are no US-resident workers qualified and available to fill the role.
With the L-1 visa, however, there is no LCA requirement.

Dependants

Under the L1 visa, the principal visa holder can be accompanied by their spouse and minor children under the L-2 visa. Further, with an L-2 visa, holders can apply for work authorization in the US.

The H-4 visa is for dependants (spouse and minor children) of H-1B visa holders.

Green Card eligibility

Under both the L1 and H1B visas, foreign nationals can become eligible for US permanent residence (Green Card). When applying for either visa, applicants will not have to evidence either substantial ties to their country of residence or their intention to leave the US on visa expiry, nor can their visa petitions be denied on these grounds.

For L1 visa and H1B visa holders to apply for a Green Card, they will need to file for an Adjustment of Status. There are a number of potential Green Card routes to consider, such as the EB-1C for L1 visa holders, or categories EB1, EB2, or EB3 for H-1B visa holders.

Prevailing wage

The H1-B visa petition has to show that the applicant will be paid, as a minimum, the highest of either the relevant prevailing wage rate or actual wage rate for the role in question. L-1 visas, however, are not subject to the prevailing wage requirement.

Frequent transfers

For multinational organizations transferring employees to the US on a regular basis, the Blanket L offers a convenient way to fast-track petitioning. Only eligible companies can take advantage of the Blanket L, specifically, those who can show at least 10 L-1 approvals during the previous one year, or those with US subsidiaries or affiliates with a combined $25 million in revenue or with at least 1000 employees in the US. The H1-B offers not equivalent fast-track option for employers hiring skilled foreign workers.

Employment stipulations

The H1-B allows foreign workers to take up employment in the US with an entirely new employer and company, whereas a key requirement of the L-1 visa is that the applicant has worked for the multinational employer for at least one consecutive year during the three years immediately before the date of the application. L-1 visa holders are also strictly limited to working only for their petitioning employer once in the US.

The H1-B, however, allows for applicants to file petitions in respect of multiple roles for different prospective employers and to apply to transfer their status to a new qualifying sponsor (employer) once in the US.

H-1B or L-1B: which is better?

Opting for the right visa for your needs will be critical when making a move to the US. Whether the H1-B visa or the L1 is better for you will depend on your circumstances, whether you meet the eligibility requirements and if any of the visa restrictions render the route unsuitable for your needs.

If looking at a temporary transfer to work in the US, the L1 or the H1B could be appropriate depending on your circumstances. While the L-1 is only open to those that work for multinational companies, the H-1B offers more flexibility for individuals to change jobs and employers while in the US.

While the L1 visa and H1B tend to be the most well-known temporary work visas, other options may be available depending on your circumstances. For example, the E-1 visa offers a route where the business in question is an established trading partner with the US looking to further this position from within the US, or it may be that the B-1 business visitor visa satisfies your needs if you will be staying for a shorter period to conduct certain types of business-related activity.

At NNU Immigration, we specialise in all US visa categories, advising employers and visa applicants on the options available and providing guidance on how to compile and submit a compelling application.

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.