L-1 to H-1B Change of Status

Often foreign professionals find themselves in the United States on an L-1 visa and weighing the pros of converting to an H-1B visa for its multitude of benefits. Having an L-1 visa can be highly advantageous to you if you work for a multinational company however many circumstances may cause you to need to change your status from an L-1 visa to an H-1B visa. The two visas do share some similarities but there are distinct differences that would make one better for your situation over the other. 

L-1 Visa to H-1B Visa Change of Status

Transitioning from L-1 to H-1B change of status is not all that complicated. 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 converting your status from L-1a or L-1B 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.  

1. L-1 visa holder accepts the job offer from a new H-1B employer.
2. New H-1B application must be subject (will be subject to H-1B cap unless the new employer is an institution of higher education, non-profit that is associated with an institution of higher education or a governmental research center).  If possible, it is good to get a job offer from an employer that falls into one of these categories because your petition will not be subject to the cap.
3. New H-1B employer submits Labor Condition Application with DOL (requires certification).
4. In the event that the application is chosen in the lottery, the employer petitioning you needs to submit Form I-129 in addition to the certified Labor Condition Application and supporting documents.
5. Assuming the H-1B visa petition gets approved, you (the employee) can start working on October 1st and your status will be changed.

L-1 Visa Requirements

The L-1 is a temporary work visa that is meant for the transfer of employees from a multinational company’s foreign branch to a location in the U.S. There are two types of L-1 visas, both of which may be suitable for a change of status to an H-1B. 

For L-1A Visa (Managers and Executives):

• Employee must have been working for the foreign company for at least one continuous year within the three years preceding the L-1 visa application.
• U.S. and foreign companies must have a qualifying relationship, such as parent and subsidiary, branch, or affiliate.
• Employee must be coming to the U.S. to work in a managerial or executive capacity.
• U.S. company must have a physical office or location in the U.S.

For L-1B Visa (Employees with Specialized Knowledge):

• Employee must have been working for the foreign company for at least one continuous year within the three years preceding the L-1 visa application.
• U.S. and foreign companies must have a qualifying relationship, such as parent and subsidiary, branch, or affiliate.
• Employee must possess specialized knowledge that is not readily available in the U.S. labor market.
• U.S. company must have a physical office or location in the U.S.

H-1B Requirements

The H-1B, on the other hand, is not limited to multinational companies, which is what makes it such a popular visa option.

• Job Offer – Applicant must have a job offer from a U.S. employer for a position that qualifies as a specialty occupation.
• Specialty Occupation – The position must require specialized knowledge and a minimum of a bachelor’s degree or equivalent in a related field.
• Education – The applicant must possess at least a bachelor’s degree or its equivalent in the specific field related to the H-1B job.
• Employer–Employee Relationship – There must be a valid employer-employee relationship between the petitioner (U.S. employer) and the beneficiary (H-1B visa applicant).
• Labor Condition Application (LCA) – The U.S. employer must file an LCA with the Department of Labor, attesting to compliance with labor standards and prevailing wage requirements.
• Wage Requirements – The employer must agree to pay the H-1B visa holder the prevailing wage for the specific occupation in the geographic area where the work will be performed.

Similarities Between L-1 and H-1B

Both L-1 and H-1B are temporary (non-immigrant) visas that allow dual intent. In this case, dual intent means that the foreign worker 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 $2,805 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 business 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.

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 can also be eligible to get an EAD if their spouse is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker. 

Differences Between L-1 and H-1B

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).

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.

L-1 to H-1B Cap Exempt

As you can see, one of the major disadvantages of the H-1B among all other nonimmigrant visas is the fact that it is subject to the annual cap and lottery. However, not all H-1B petitions fall under this cap. H-1B transfers and extensions are cap-exempt, and so are petitions filed for certain cap-exempt employers. This last part is important if you are an L-1 visa holder who wants to avoid the cap.

There are three types of employers that are not subject to the cap:

• Institutions of higher education
• Non-profit organizations that are associated with institutions of higher education, and;
• Governmental research centers

If you can get a job offer from an employer that falls into one of these categories, your petition will not be subject to the cap. This means that it can be submitted at any time (not just the first business day in April like cap-subject petitions) and you do not have to wait until October 1st to begin working as an H-1B employee.

However, this is not an effective way to circumvent the cap and work for a different employer. If you file to transfer your H-1B status from a cap-exempt employer to a cap-subject one, you will need to enter your petition into the lottery and be restricted to the designated time period.

Process of L-1 to H-1B Change of Status

The H-1B season, starting in April, operates as a lottery system, with cap-subject petitions categorized into Masters (20,000) or Regular Quotas (65,000). Planning is crucial, especially for those not on H-1B status previously, as an annual cap applies. The sponsoring employer files the petition, including an employment letter with duties, employment dates, and prevailing wage details. The Labor Certification Application, involving four attestations to the Department of Labor, is the next step:

1. Confirmation of prevailing wage payment.
2. Assurance of no negative impact on current employees.
3. Notification to current employees about the new hire.
4. Confirmation of no ongoing strike or lockout.

Once approved, the DOL provides a certified copy. Submit all necessary documents to the USCIS service center, with the employer covering fees (except premium processing). If selected in the lottery and approved, H-1B employment begins on October 1st, automatically changing nonimmigrant status. Remember, the beneficiary cannot pay fees by law, but personal gain can justify the premium processing fee.

Learn about H-1B Visa Stamping in this guide.

Can You Change Your L-1 to H-1B With the Same Employer?

As long as your L-1 employer can be considered a U.S. employer and can offer you a specialized position, you should be able to have that employer sponsor you for an H-1B. However, keep in mind that an employer with too many H-1B workers may be considered H-1B dependent. Also, remember that you need a bachelor’s degree that is related to your specialized H-1B job. Not all L-1 positions qualify you for an H-1B. Be sure to have your immigration attorney review your case and determine whether or not your position qualifies.