H1b vs L1 visa

The second part of H1b vs L1 comparison covers path to green card.

L1 vs H1b The graph is plotted using publicly released USCIS data.

Assumes 25% of dependents enter the workforce. More details about H1b vs L1

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4 options after H1b visa extension denial

Recently, my friend got into an unfortunate situation where his H1b extension petition was denied. It first went into rfe, and subsequently denied. It was denied because USCIS was not satisfied with the project details attached by his employer. His employer had placed him at a third party client site for the project. The initial RFE was was replied to. However, USCIS was not satisfied with the response and denied the extension.

Naturally, he had lots of questions like

  • What are the next options available to him in terms of his visa?
  • How long can he stay in the US?

He eventually found the answers for his questions and this post is a guide to people who get into this unfortunate situation.

Do I need to stop working?

You can work until your previous I-94 date or until you receive the hard notice of denial from USCIS (whichever is earlier). Most likely, the notice might ask you to leave as soon as possible.

What are the options available to revive my H1b visa?

There are few options depending on your circumstances

Appeal the decision

Your employer can opt to appeal the decision made by USCIS. But appealing doesn’t give you any legal status to stay and work. Also, appeals are not guaranteed to overturn the decisions. On top of if it may take several months to get a response for the appeal. So basically not very employee friendly.

Same Employer, refile a new petition for the same position

Your employer could file a new petition in premium processing attaching any additional evidences that would support the case. While doing so, they can save time by using the earlier LCA. They can also explain the previous petition denial and new evidences added to support the petition. In addition they could also request for your stay under extra ordinary circumstances. If USCIS accepts this it is the best out come. As USCIS would issue a new I797 with I94 and you wouldn’t have to leave the country. On the other hand, USCIS might approve the petition but ask you to re-enter the US with new stamping. Inconvenience, but still a better outcome. However, this whole thing is expensive as the employer has to pay for the new application, premium processing etc.

Same employer, different position

If your employer has a different position available, then they could file a new H1b extension petition for it. If it’s a similar position and location, they would be able to reuse the LCA and save some time. If it’s approved, USCIS may still ask to get a new visa stamping by going out of the country.

New employer, same position

If you happen to work on a third party client project, most likely you would have many other vendors working for the client. As soon as you know about your denial, you can start asking if any of those vendors would be interested to hire you for the same position. It’s always easier for a new employer to sponsor for a visa when you have a valid job on hand. This will involve new LCA and other processes and expenses.

New employer, different position

Basically, you would just start anew with a new employer and position. It may be challenging as you would most likely have to leave the US and apply for a visa transfer and extension after you get a job.

Change of status - become a dependent

If your spouse has a valid non-dependent visa, you can apply for a change of status to become a dependent. For example, if your spouse is on H1b, then you could apply for H4. So, that at least you have some breathing space. Though you cannot work, you will have time to figure out your situation.

What happens to my status? How long can I stay or Should I leave the country immediately?

Your are technically out of status as soon as you or your employer receives the hard copy of the denial notice. Most likely, the notice might ask you to leave too. Though you are out of status, you are going to need some time to wind up your activities and plan for leaving. But remember you would be accruing unlawful stay, so plan to leave in a reasonable time frame. In my friend’s case he immediately stopped working and made arrangements for travel and left the country in 2 weeks.

So, unfortunately in most of the options described above, you would have to stop working and leave the country :(

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H1b vs L1 visa comparison

Both H1b visa and L1 visa programs are to bring certain skilled temporary workers to the US, though H1b is arguably the popular one in the media. L1 visa may be less popular in the media, but it is definitely popular with the employers. Consider the fact that dependents of a L1 visa can also work from day one. If you make a reasonable assumtion that 1 in 4 L1 dependents (L2 visas) enter work force, I would argue that every year, L1 visa program enables more immigrants to work in the US than the H1b visa. Here is the plot of L1 vs H1b over the years,

L1 vs H1b

The graph is plotted using publicly released USCIS data. Note that, it assumes 1 in 4 dependents work. Combined that with the L1 primary visa holder it outnumbers even the H1b program in 5 out of the last 7 years (except 2009 and 2012). The red straight line is the number of H1b visas issues each year, which is regulated by 85,000 annual cap. Since, each year the cap is reached, it’s a straight line.

Anyways, moving on to the actual differences between the two programs,

Attribute H1b L1
Yearly Cap 85000 No cap
Duration 6 years 5-7 Years
Minimum wage Must pay at least the minimum prevailing wage in the market No minimum
Education US bachelors or equivalent matching the area of work No minimum education required, as long as the worker has certain special skills
Dependents work permit Not allowed Spouses are allowed to work from day one
Blanket petition Not allowed. Each worker’s petition must be individually approved Companies can get certain number of petitions approved as a blanket and flexible to bring any temporary worker as needed using the blanket category. No need to apply to USCIS for each individual case, saving processing times
Permanent residency Employers must conduct a labor market test to hire a US citizen and upon passing the worker then has to wait his/her turn in the queue according to his/her country of birth L1A workers can apply in Eb1C category, which requires no US labor market test. Usually can get green card under a year. L1B visa holder process is similiar to H1b

It looks to me in every category above, L1 is more flexible than the H1b visa.

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