Immigration Issues/COS and Visa change from H1 to L2
QUESTION: I was on L2 visa since my Husband is on L1 visa. I applied for my EAD and took up a job here in US.
My Employer applied for my H1b and the H1B approval came with the change of status.So from 1st Oct 2008 I am on H1b.( not stamped on the passport), I intend to resign (Please suggest when Should i do that) and not work for my employer A who has sponsored my H1 due to personal reasons. I am told i have the following options 1. COS from H1 to L2 2. Travel Abroad and come back using the old valid L2 visa on passport.I cannot use the first option since I intend to travel and then my COS will be invalid.Now I wish to leave for Canada to visit a friend for 2-3 days next week and then my home country towards the dec end for holidays. I wish to be in my home country for 1-3 months due to some urgent personal issues. I still have my L2 visa which is valid for another 2 years and my Husband is on L1 in US.When I enter Canada I am intending to return my I94 which i got for L2 entry ( This should be linked to my H1 now) - When I am reentering US via Canada - Can I use my old L2 visa ( which is valid) since I am not planning to get my H1 stamped (I do not wish to work when I am back since I am leaving for my home country for 1-3 months immediately)This way can I also apply for my EAD based on my L2 and leave for my Home country? What happens to my H1 if my employer A does not revoke it? Can i use it later for H1 transfer if opportunity arises?
Since you can hold only one status at a time in the U.S., and since the latest action by the USCIS is to grant you change of status (COS) to H1B effective October 01, you are currently in H1B status.
Please note that you will be in violation of H1B status if you discontinue employment with the H1B employer (although there is a 10-day grace period available). Therefore, to change status back to L2, an application to change status (Form I-539) can be filed, but this is effective only if you will continue to remain in the U.S. until COS is actually granted by the USCIS.
Alternatively, you can depart the U.S. (anywhere outside the U.S. is fine), and when entering the U.S. show the unexpired L2 visa stamp in your passport. You may want to carry evidence (such as pay stubs from the H1B employer) with you that you maintained H1B status from October 01 (when H1B status took effect) until you departed the U.S., as well as evidence that your husband is maintaining his L1 visa status (such as marriage certificate; recent pay stubs of your husband; and copy of your husband's L1 approval notice).
You will not be subject to the visa cap again (at least for the next six years) if another company files an H1B petition for you, and this holds true even if Employer A revokes the H1B petition that it has filed for you.
Ajay K. Arora, Esq.
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QUESTION: Thanks a lot, This is great help.
However one last question - What will be the state of my L2 based EAD once I come back to US on L2.
Can i use the same EAD or need to apply and wait for a new EAD which takes 90 days?
Since the EAD application is not a request for change of status, An EAD application can be filed and you can depart the U.S. The EAD card will normally be mailed to your residence in the U.S., and it will continue to be valid when you come back.
Ajay K. Arora, Esq.