H-1B and L-1 visas are both desired by companies who want to recruit highly skilled foreign workers. L-1 (intra-company transferee visas) permit entry into the U.S. to foreign skilled professionals who are qualified as managers, executives or with some “specialized knowledge” in their field, vital to the operation of the U.S. business. In some cases, you may desire an L-1 to H-1B change of status in order to better suit your current circumstances.
To begin with, there are a few similarities between L-1 and H-1B status:
- Both L-1 and H-1B are temporary (non-immigrant) visas that allow dual intent. In this case, dual intent meaning that the foreign work does not need to demonstrate ties to the home country or jeopardize their visa status by filing for a green card.
- They both are available for premium processing. The premium processing fee of $1,225 and checks should be made payable to the U.S. Department of Homeland Security. USCIS guarantees that premium processing cases will be handled within 15 calendar days. If you receive a request for evidence (RFE) or other additional paperwork then an additional 15 day period will begin for processing once USCIS receives those documents.
Likewise, there are key differences between the two visas:
- The maximum length an individual can remain in the U.S. on an L-1 is seven years (L-1A) and five years for L-1B. Whereas an H-1B status holder can stay for six years with the option to file for a three year extension.
- For individuals who spend time outside the country on an H visa, that duration is applied towards the maximum amount of the L visa (or vice versa).
- The spouse of an L-1 visa holder may apply for Employment Authorization Documents (EADs) and subsequently start working legally after receiving approval. Relatives of H visa holders do not have this ability.
- There is no annual cap on the number of L-1 visas granted and it does not require any specific educational degree. Moreover, employers are not required to submit a labor condition application. Within the H-1B category, there are exemptions to the cap for those who meet specific criteria. Click here to learn about the H-1B cap exempt requirements.
- L-1 visa petitions can also be filed en masse through a blanket petition. This allows employers to file one petition for multiple employees simultaneously. The H-1B has no such option.
- L-1A holders can easily come to the U.S. to open a new office (though visas in this case are issued for an initial period of one year). Although it is possible to start a business on an H-1B visa, it is more complicated and there are no special provisions for it.
- H-1B recipient are required to have some “specialized knowledge” related to the position and possess at minimum a bachelor’s degree (or equivalent). Although in some cases, work experience may substitute the formal degree.
Advantages of L-1 to H-1B Change of Status
- The process is relatively simple compared to other changes of statuses and if you happen to be denied for H-1B status, you can remain in the country on your L-1 visa!
- Foreign workers on L-1 status are not allowed to apply for a job other than the one in which they were approved for on their application. This means they also can’t transfer their L-1 visa to a different company. So by changing to H-1B visa status the foreign worker is able to change employers/jobs at any given point.
- Once approved for H-1B status, you can begin working as soon as October rolls around. If you fall in the H-1B cap exemption category, as with H-1B nonprofit jobs and other institutions, there is no particular time period imposed.
Disadvantages of L-1 to H-1B Change of Status
- As a worker on H-1B status, you are required to pay taxes on the wage rate determined by the Labor Department whereas L-1 status does not dictate a minimum wage rate.
- There are a limited number of H-1B visas available each year whereas L-1 visas are not subject to numeric limits. To get an H-1B visa, you need to go through a lottery that can severely reduce your odds of successfully changing your status.
There may be additional disadvantages of L-1 to H-1B change of status for your particular situation. Since this is subjective, it’s best to consult an immigration attorney.
Process of L-1 to H-1B Change of Status
Once you find an employer to sponsor you on an H-1B visa, the process is relatively straightforward for an L-1 to H-1B change of status (COS). THe important thing to remember is that there is no special process for changing your status from L-1 to H-1B. You will essentially be filing for an H-1B from scratch. The only difference will be that you are already in the U.S., so if your petition is approved, you may not need to go through a consular interview and can instead automatically change your status.
The H-1B season begins the first business day in April and in past years, it has been structured as a lottery system. Every cap-subject H-1B petition that is submitted to the USCIS will receive an identifier number which is then categorized into the Masters Quote or the Regular Quota. In prior seasons the regular quota was 65,000 while the Masters Quota was 20,000. Although the official season isn’t expected until April, it’s important to begin planning as soon as possible because unless you were on H-1B status in the past, you’re subject to the annual cap.
The H-1B sponsoring employer or company will file the petition on your behalf. The employment letter should include:
- Details regarding the duties and responsibilities of the position
- Specific dates of employment
- An indication of the prevailing wage in relation to the actual wage. H-1B employers are required to pay the employee the higher amount. Prevailing wages are established by the State Employment Security Agency based on the worker’s duties, experience and skills necessary to complete the job.
The next step is to file a Labor Certification Application regarding the H-1B sponsor. This entails having your employer make four attestations to the Department of Labor.
- That you will be paid the prevailing wage for your job and geographic location
- That your employment will not negatively affect the working conditions of those currently employed with your employer.
- That the current employees have been notified of the intent to hire you.
- That no strike or lockout is taking place.
Once approved, the DOL will return the employer a certified copy. Finally, all the necessary documents (including Form I-129, experience and employment agreements) should be sent to the appropriate USCIS service center. You should also make sure that the fees are correct. Here are the fees that go along with a first-time H-1B visa:
- I-129 filing fee – $460
- Fraud prevention fee – $500
- ACWIA fee – $750 if your employer has fewer than 26 employees and $1,500 for 26 or more.
- Public law 114-113 fee – $4,000. This fee is only applicable if your employer has more than 50 employees with at least half of them on H-1B or L-1 status.
Remember that your employer is responsible for all of these fees. By law, the beneficiary is not permitted to pay them. However, you can pay the premium processing fee, though you will need to indicate that the reason is due to your personal gain and not the gain of the employer.
If your petition is selected in the lottery and subsequently approved, you will be able to start working as an H-1B employee on October 1st of the same year that you filed. On that day, your nonimmigrant status will automatically change to H-1B.
Additional Tips to Ensure Approval
- Complete all forms in black ink
- Double check the amount on the checks or money orders and the mailing address
- Be conscious of deadlines and begin planning as early as possible
- Consult with our Fort Lauderdale immigration lawyers to review all your documentation
Once you receive a petition approval, you set for an L-1 to H-1B change of status (COS) and can begin working for the new employer beginning October of that year. If you receive a denial, then, in theory, you would continue working for your original employer on L-1 status.
How We Can Help with L-1 to H-1B Change of Status
L-1 to H-1B change of status can seem complex for some individuals which is why it’s advised to seek an H-1B immigration attorney. Having an expert on your side can help you avoid the common pitfalls of changing your status and to protect your immigration investment.
Our immigration lawyers can advise you every step of the way for L-1 to H-1B change of status (COS). We understand the importance of proper filing and have assisted hundreds of clients with H-1B documentation. If you would like to make use of our services, you can fill out our contact form and schedule a consultation today.