How to Extend Your Stay in the U.S. Beyond the Time Period Specified by USCIS
Can I recapture time not spent in the U.S. to stay here longer on my L visa?
Immigration law states that “the period of authorized admission for” an L-1 nonimmigrant admitted to render services in a managerial or executive capacity shall not exceed 7 years, or an L-1 nonimmigrant admitted to render services in a capacity that involves specialized knowledge shall not exceed 5 years. However, because “admission” is defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer” only time spent in the United States as an L-1 counts towards the maximum. As a result, time spent out of the United States, (whether on vacation, overseas assignments, etc.) does not count as time spent “in the United States” for purposes of counting time against the limits of your visa status. This means that you may be able to add on time spent out of the United States as a possible way to extend your stay in the U.S. The regulations very clearly create a physical presence standard for measuring time spent in the U.S., and not a residence standard. Immigration law is a complex field of law. There are many intricacies that may make or break your case. If you need help in extending your stay in the U.S. on your L visa, please call or email our experienced immigration attorneys at JCS Immigration and Visa Services. [LINK TO CONTACT JCS]
If I am allowed to stay in the U.S. on recaptured time, will my spouse and/or child(ren) be able to stay with me as well without a new visa application?
If an L-1 visa holder recaptures time, the L-2 derivative visa holder should be able to recapture the same amount of time, even if the L-2 has never left the U.S. The regulations provide that L-2s should have the same periods of admission as their principals. Hence, if you are able to recapture time spent out of the U.S., your spouse or your child(ren) who have accompanied you on an L-2 visa would be able to extend their stays equally. Your dependents will have to apply for the extension or change of status, following your extension or change of status. To make certain that your family will be able to stay in the U.S. with you, please call or email JCS Immigration and Visa Services. Our experienced immigration attorneys can help you today! [LINK TO CONTACT JCS]
Obtaining a Different Category of Employment Based Visa
If I am here on an L-1B Visa, will USCIS allow me to change it to an L-1A visa and extend my stay?
An L-1B visa holder may be able to change visa category to extend his or her stay beyond the specified time limit. Many individuals who have L-1B status may qualify for L-1A status. A change from L-1B with a five year limit to L-1A increases the visa status period to seven years. The extension application can be filed to gain two additional years and it can be filed until the last day of the initial five year period. It is important to note that if the noncitizen employee qualifies for the L-1A based upon a promotion, the promotion must occur at least six months before the expiration of L-1B status. If the employee was qualified for the different position already and did not need to be promoted to achieve that job status, then the six month period is unnecessary. If you have any questions or concerns about whether this is the right choice for you to extend your stay, please feel free to call or email JCS Immigration and Visa Services. Our experienced immigration attorneys are ready to help you today! [LINK TO CONTACT JCS]
Will USCIS allow me to change from an L-1B visa to an H-1B visa to extend my stay in the U.S.?
The L-1B visa holder who is reaching the end of five years and is not employed in a managerial capacity may have an additional option. It may be possible to change status to H-1B to obtain a sixth-year.
Before the sixth year begins, the employer could file a labor certification application on behalf of the noncitizen employee, which will enable him or her to obtain a seventh-year and possibly further extensions.
Changing Visa Holder Status to Extend Time in the United States
Can I change from a principal visa holder to a derivative visa holder to extend my stay?
If a nonimmigrant who has spent the maximum period of time in L-1 status has a spouse who is or qualifies for L-1 status, he or she can change to L-2 status at the conclusion of the five, six or seven year period. The INA only creates the six year limit for H-1B nonimmigrants, not for H-4 nonimmigrants. However, the immigration regulations preclude change of status of any noncitizen who has been in the United States for the maximum time period to any other H or L status. Yet, there are other regulatory sections that allow derivatives to remain in the U.S. for the same length of time as the principals. This gray area with seemingly conflicting laws can be navigated safely if the noncitizen in L-1 status leaves the United States shortly before the conclusion of the five, six or seven year period. This means that they have not used the entirety of the time period allowed on the L status, and therefore they do not trigger the statute barring visa status change. Hence, when the noncitizen then applies for an H-4 or L-2 visa at the U.S. Consulate, there is no reason based on an expired prior visa to bar to the issuance of the new derivative visa. For expert legal counsel and aid in navigating this difficult area of law, please call or email our experienced Los Angeles immigration attorneys today. We offer a free initial consultation. [LINK TO CONTACT JCS]
What about the reverse situation where the L-2 wants to change to L-1 after five or seven years?
Although USCIS policy appears to limit this sort of change of status, the restrictions only apply to a noncitizen who has spent five or seven years in the U.S. under L-1 status. If the spouse is in a status other than L, such as F-1 or J-1, there are no restrictions for the L-1 to change to F-, J-2, or any other derivative nonimmigrant status. Of course, if the change is to J-2, L-2 or E-2, employment authorization is an option.
Will USCIS Allow Adjustment of Status While in the U.S. on an L-1 Visa?
Becoming a lawful permanent resident in the United States is often the goal of many L visa holders. Applying for adjustment of status is also a means to stay in the U.S. for longer than your L visa status allows. From the date of filing the adjustment application and until the USCIS reaches a decision on your application, you can remain in the United States even if the time limit is reached on the nonimmigrant status. Concurrently with the filing of the adjustment of status application, you can file an application for employment authorization, which must be adjudicated within 90 days by regulation. If you would like more information regarding any type of U.S. permanent visas, do not hesitate to contact our green card and visa lawyers in our Los Angeles office for a free initial consultation. [LINK TO CONTACT JCS]
What if the time limit is reached before my quota is current or before my immigrant petition has been approved?
Assuming the immigrant petition is in the employment-based first, second, third or fourth category, and assuming the applicant’s status has not expired for more than 180 days before the adjustment application is filed, the applicant will still be eligible to adjust.
What if a noncitizen “volunteered” during this period while awaiting the USCIS decision?
If an applicant for adjustment of status received no wages or other compensation, it is likely that the employer would not be subject to employer sanctions penalties. However, the employer may be subject to penalties under the Fair Labor Standards Act for paying less than the minimum wage for services provided. Once the adjustment application is filed, the time limits associated with L-1 status are normally not a concern. However, since L-1 holders can work and travel utilizing their rights under that status, they may wish to keep their nonimmigrant status alive and extended while the adjustment is pending. Maintaining your valid status may be important if the application for adjustment of status is denied.
If I cannot extend my L visa, would working outside of the U.S. prove beneficial?
In some circumstances, it is not possible to continue to work in the United States. In such a case, it may be better to work for the same U.S. company that currently employs you, but perform services outside of the United States for a period of time to “reset” the visa clocks. The stay outside of the U.S. would need to be for at least one year if you wish to return to the United States in L-1 status. During this time out of the country, you can still enter the United States periodically under a B-1 or B-2 visa for business or tourist visitors. Although such visits to the U.S. do not “restart” the one year period outside of the United States, the days in the United States do not count toward the required one-year period outside the United States. Of course, you may be paid by your employer in the United States for your services outside of the United States. However, there are unauthorized employment issues that may arise if you continue to be paid during your B-1 visits to the United States. Immigration law is a complex area of law. If you need assistance or have any questions or concerns, please contact us today! [LINK TO CONTACT JCS]