L Visa

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

Enter USA while Green Card is Pending on B-1, B-2/H-1 Visa

Detailed question:

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=baprYGs8IzQ&t=782

FAQ Transcription

There really is no statute law that specifically prohibits such an entry. Well maybe there is something that says you must have nonimmigrant intent but the question is can they do it. Theoretically  yes they can enter on a b visa while the green card is pending especially when something is pending for 13-14 years they maybe allowed an entry but they can be disallowed an entry at any point of time. So there is no guarantee that the B-1/B-2 option either the renewal of the visa or entry at the airport will be permitted on a indefinite basis. You could be stopped any time.  However H visa, L visa, E visa and O visa are some of the visas that are not subject to the problem of green card pendency. These visas can be utilized. Also remember a green card can be filed through several different categories at the same time. So if your sibling qualifies for other categories they can apply under all the categories available for them. So H-1 visa is no problem b but B-1/B-2 no guarantee.

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Can I postpone H-1 status

Detailed question:

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=xv_vI7O0d4U#t=441

FAQ Transcript:

The answer to the first question is it can be done. When you apply for an H-1 do not apply for a change of status. That’s up to you. You can tell the employer and make sure you talk to the lawyers. Just say you want an H-1 approval but I do not want change of status. Come October 1st you don’t automatically get on to H-1 but stay on L-1 and you can continue working on L-1 and whenever you are ready you can go outside get visa stamping and come back or apply for change of status within US to H-1 which is like doing the H-1 all over again but you are not subject to the quota. 

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Using Obama's Immigration Action to Apply for AOS/EAD

Detailed question:

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=QvnIAm0nQJ8#t=808

FAQ Transcript

Yes you can apply for I-485 and EAD. Couple of things. You will have to be in USA on a legal status, probably on H-1. So if you are outside USA don't stop try to get H-1 because you can't enter on tourist visa. Let's get a step back and say Obama implements this plan, it gets implemented in few months down the line. We will actually have a guideline what to do for these cases. What will happen is most likely you will have to be in the United States in the legal status and apply for Adjustment of Status.  You can't do from outside USA. 

Can you enter on something like tourist visa and the answer is probably no because probably it is unacceptable to use tourist visa to come into the United States to do the Adjustment of Status . So H-1, L-1 are the best options. So, somewhere down the line you probably need a H-1, if Obama action kicks in and you want to apply for AOS.

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Licensing of Foreign Persons Employed by a U.S. Person

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Answer:

When is a foreign person considered an employee?
A foreign person is considered an employee when the foreign person is a full time regular employee, directly paid, insured, hired/fired and/or promoted exclusively by the U.S. person. The employee, however, need not LIVE in the U.S. to be employed by the U.S. person. The U.S. person is liable to ensure all foreign person employees are compliant with U.S. export laws regardless of residence.

If residing overseas, is the foreign person employee considered a broker?
If truly employed by the U.S. person, the foreign person is NOT considered a broker when performing the U.S. person’s business (must be within the scope of the employment authorization) since he/she is a company employee.

Should current authorizations be replaced or amended to be consistent with current guidance?
Currently approved authorizations are still valid. As expiration dates are reached, industry will be expected to submit the appropriate authorization as delineated in the current guidance.

Can multiple employees be covered under one authorization?
Yes. Multiple foreign person employees can be covered under one authorization so long as they are all of the same nationality working on the same program/commodity, i.e., all French nationals working on the same radar program.

How is an employee providing marketing services overseas identified in a license application?
If the U.S. person desires for the foreign person employee to market their products to other countries and the product is within the scope of the DSP-5, the U.S. person should obtain a license to market a particular technology to a particular country identifying the foreign person employee as a foreign consignee. Once the marketing license is approved the foreign employee may perform his/her job duties. The case number of the employment DSP-5 should be identified in the marketing license application.

What if the foreign person’s place of birth is different from the country he/she now resides in and holds citizenship from?
This would bring into question the issue of dual nationality and whether the individual had ties to his country of birth which would indicate a degree of loyalty and allegiance to that country. The license would be considered on the basis that it could be an export to both countries. Normally, this does not present a problem unless the country of birth is proscribed under 22 CFR 126.1 in which case we have to secure additional information to confirm lack of significant ties to the country of birth.

Wha value should be entered on the license application?
DDTC suggests identifying the foreign person employee’s annual salary and/or value of the technical data/defense services transferred/received.

How should the foreign person employee of a U.S. person be identified in the TAA or MLA?
The agreement holder must amend the agreement to specifically identify the foreign person employees of all U.S. signatories. The statement should be made in 22 CFR 124.7(4) with other statements regarding transfer territory. If the foreign person employees are not already identified, this statement should be included in the next amendment submitted to DDTC for approval. 

Who should sign the DSP-83 for the transfer of U.S. classified information?
The U.S. person and the foreign person employee must execute the DSP-83 when the transfer of U.S. classified information is required. DDTC may require the foreign government to execute the DSP-83 on a case-by-case basis. 

For more information visit these links: http://www.pmddtc.state.gov/faqs/license_foreignpersons.html#1

http://www.uscis.gov/working-united-states/temporary-workers/frequently-asked-questions-about-part-6-form-i-129-petition-nonimmigrant-worker 
http://www.bis.doc.gov/

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Home Residency Requirement for Second Visa

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Answer:

If I remember correctly, 212(e), the HRR, does not apply till you actually use the visa.

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L-1 Blanket petition

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As long as you work full time and on the job described in your L-1B while you are INSIDE USA, it does not matter how long you stay outside USA.

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L-2 Visa without EAD

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USCIS has to issue you an EAD (apply using Form I-765) and the SSA has to issue you an SSN. Once you have your EAD, you may work anywhere in USA at any job.

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Starting business on L-2 visa

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With an EAD, an L-2 can work anywhere including operating their own business and work as many jobs as they like.

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L-1 visa from an affiliate

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Answer:

Interesting situation. Not having researched this issue, I am guessing, the only way you can qualify for the L-1 is if you can establish that the hotel in Spain was your "true" employer in that they controlled you, even though your salary was paid by the consulting company.

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Wife work permit

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Personally, I prefer the L-2 option for her. She can work AND go to school. More choices.

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Parents B-2 Visa

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I dont see much difference in the two (as long as we are truthful with the consulate). Option b may be slightly better because you would already have the L/H visa.

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L2 Visa holder

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Answer:

You need complete credentialing including a license.

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Moving to USA on L-1

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I am not sure it is worth the risk, either. You have no right to continue to live in USA if the company fails or lays you off. You can negotiate a large severance package, but that is all the protection you can get.

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Denial of an L-1A

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Answer:

Your current approval is not invalidated by denial of an L-1A. You can use it.

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H1 Visa

Detailed question:

Answer:

This seems to be an issue of contract only. Immigration law does not stop you from changing.

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L1A to EB1 from outside USA

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Answer:

EB1 can be applied while you are outside USA. A new employer can sponsor only after you have worked for them for one year outside USA.

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Chances of L1A to EB1

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Answer:

No, sorry. The basis of an International Manager's or Executive's EB-1 filing is that you must have been employed abroad with a related company for one year. Since you will not be able to meet that criterion, I do not see how that type of EB-1 can be filed through a new company.

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L2 Status

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Answer:

Once you have the EAD you can work for anyone in USA, including a company that is not in USA.

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L1B to H1

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Answer:

You will need to apply for an H-1 through the employer you wish to join. You should be able to apply for a change of status as a part of that process.

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L2 EAD Renewal based on I -94

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Answer:

Visa is irrelevant for status in USA. Look to your I-94 only. I dont see why you cannot renew EAD till I-94 validity. Since this matter is important, do double check with the company lawyers.

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L2 visa and EAD

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As far as I know, you will have to be here. Nothing can be done before that.

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L1A visa and H-1

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That depends upon whether or not you have also received change of status. If yes, you will not need to get visa stamping until you travel outside USA.

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L1A Extension processing time

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Answer:

L-1A extensions are very difficult unless you meet all the criteria.

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F1 visa to business visa or H1/L1

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Answer:

If you qualify, H and L visas are certainly more secure than an F visa.

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L1B

Detailed question:

Answer:

The time taken for L-1B holder who applies through PERM is the same as for anyone else from the country you were born in. No special case here, unless yo convert to L-1A and go through EB-1.

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L-1B

Detailed question:

Answer:

1. L-1B visas do not permit part time employment.
2. I think 35 hours each week (full time). Part time is not permitted.
3. Part time is not allowed under L-1B.

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Request Info for L1 visa to do business

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Answer:

L-1 visas have progressively become more difficult for smaller companies. But I think it my be worth a try.

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L1 Visa

Detailed question:

Answer:

Yes, looks like you can. The law only requires one year of employment out of the last three years.

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L-2 for Fiance

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Answer:

You would be getting her an L-2 status, not visa, within USA. I usually discourage change of status from B visa, but it is possible to do this. Consult with your lawyers.

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Convert L1B Blanket VISA to H1B

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Once the quota is full (as it is now) you can get an H-1 only for a job that is quota exempt (not just an employer that is quota-exempt)

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L-2 as dependent turning 21

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Answer:

Correct. Once you are 21, you cannot be on L-2 status.

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L-2 to L-1 Visa

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Answer:

Normally, you can apply for another status only while still in status. Once the existing L-1 term is over, getting a change of status within USA is difficult. You need to discuss your case with your lawyers.

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L-1A visa eligibility and time spent in US

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Answer:

Your time in USA must be compensated with extra time outside USA. If the time in USA is just a few days in a year, you should be fine with that formula. But, if the time in USA is too much (several months), things get much more complicated.

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L1 visa

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Answer:

Generally speaking, 35 hours each week can be argued to be full time.

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L-1B applying for green card

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Answer:

True. Converting to EB1 through an executive or a managerial job is the way to go. That way you can go thorough EB1 rather than PERM based process that takes several years.

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Choices to work in USA

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Answer:

The most obvious choices are H-1 and L-1 visas. Look into those. US laws are fairly stringent in visas. Good luck!

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May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?

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One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.

In the E visa context, this is what the govt says:

Quote:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
(TL:VISA-404; 04-29-2002)
An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period of time. Nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon. The alien may sell his or her residence and move all household effects to the U.S. The alien's expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific indications of evidence that the alien's intent is to the contrary. If there are such objective indications, inquiry is justified to assess the applicant's true intent. As discussed in 9 FAM 41.54 N4, an applicant might be a beneficiary of an immigrant visa petition filed on his or her behalf. However, the alien might satisfy the consular officer that his and/or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of legality of status.
So, are they saying they will apply the same standards as given in the note below? I THINK that is what they are saying, but this is not clear.

Quote:
9 FAM 41.54 N4 ISSUE OF TEMPORARINESS OF STAY

(CT:VISA-803; 04-27-2006)

L aliens are specifically excluded from the intending immigrant presumption of section 214(b) of the INA and are, furthermore, not required to have a residence abroad which they have no intention of abandoning. In addition, INA 214(h) provides the fact that an alien has sought permanent residence in the United States does not preclude him or her from obtaining an L nonimmigrant visa (NIV) or otherwise obtaining or maintaining that status. The alien may legitimately come to the United States as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and, at the same time, lawfully seek to become a permanent resident of the United States. Consequently, the consular officer's evaluation of an applicant's eligibility for an L visa shall not focus on the issue of temporariness of stay or immigrant intent.
There exists in law something called the "doctrine of dual intent." This doctrine permits nonimmigrants to have immigrant intent. In other words, even though, you are coming to USA on a visa that is temporary, you may pursue your green card (exhibiting intent to live in USA permanently).

By law, L-1 and H-1 holders are PERMITTED by the doctrine of dual intent to have their green cards pending. This is beyond question. That your green card application is pending can never be a ground for denial of your H or L visa application (includes H-4 and L-2).

As I have noted above, E-1, E-2 visas have an unclear situation. It appears the consulates WILL permit them dual intent, but may not(???). They do NOT have the same level of protection as H and L visas but usually consulates will permit dual intent.

The following visa types have no such protection and their vise or entry into USA can be denied if they have a green card application application in process: B-1, B-2, F-1/F-2, J-1, J-2.

O-1 is allowed to have an immigrant intent (by regulations - though not by statute).
Pursuant to 8 CFR Section 214.2(O)(13)
(13) Effect of approval of a permanent labor certification or filing of a preference petition on O classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.

TN is also not allowed dual intent, but are often not questioned on their green card pendency.

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When to apply for L-2 extension

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Answer:

I believe you have three choices. Add her L-2 extension/EAD to your L-1 extension in the same package; apply for your extension, wait for the receipt then apply for her L-2 extension/EAD; or apply for your extension, wait for the APPROVAL then apply for her L-2 extension/EAD (note that she must be in status when you apply for her L-2/EAD). I have listed these choices in the order of my preference.

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L-2 EAD and H-1

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Answer:

1.  Ans. It lapses upon change of status from the date the status is changed.

2.  Ans. You cannot have H-1 and L-2 status at the same time. But on the L-2 EAD you can do both jobs.

3. Ans. Yes.

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L-2 to L-1 COS or Visa?

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You can apply for COS. Even if L-1 is rejected, you can still maintain your L-2. In case of a visa rejection, you should be able to come back on L-2 visa or reapply for L-2 visa on the spot.

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L-1/H-1 COS Issues

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Answer:

I think I have mentioned this in my blog earlier. Once the COS is approved and kicks in (October 1, 2008), he is NOT on L-1 hence the work on L-1 is illegal. This can have an impact on several things.

To correct matters, he must immediately reenter USA with an L-1 visa or apply for COS back to L-1.

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L-1 - H-1 COS issues

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Answer:

Facts - I am on an L1 visa working for employer A and my wife is on L2-EAD. We both applied for H1 visa through Employer B and it got approved recently. I am not sure if Employer B (Consulting Company) has applied for COS while applying for both of ours H1 visa. Could you answer the following queries for both (COS applied and COS not applied) conditions during H1 application.

Questions

Qo1. Can I continue working on my L1 visa? If yes, for How many months? Is it legal to work on L1 after 1st October 2008 as my H1 has already been approved? (I am not sure COS has been applied or not)
Ans1. The key to this is COS. If you have obtained Change of Status (issuance of a new I-94 with your H-1 approval), you are on H-1 beginning October 1 (or whatever the date of H-1 approval and COS is.

If COS was not given, you can continue working on L-1 and either get COS or H-1 visa when you want to begin working on H-1. Of course, CIS or consulates may need an explanation for how/why the H-1 employer is willing/able to wait for you to join.

Qo2. Can my wife continue working on L2-EAD as long as I continue working on L1?
Is it legal to work on L2-EAD after 1st October 2008 as her H1 has already been approved? (I am not sure COS has been applied)
Ans2. The key again is COS. If you have it, she cannot work after 10/1 because she would no longer be on L-2 from the date forward.

Qo3 My wife will be joining on a permanent position for a company C on L2-EAD
shortly. Can she get her H1 transferred to company C from Employer B (Who applied for her H1) from 1st October 2008 ?
Ans3. In my view, she can do the transfer even before October 1.

Qo4. What would be the best options to continue our L1 and L2-EAD status for another 3-6 months ? By doing this would the H1 be Invalid ? Do I have to apply for new H1 considered under CAP ?
Ans4. You will not be under cap no matter whether you join the new employer right away or not. Read on for the rest.

Qo5. I read from some of the postings that staying out side USA (Canada, Mexico, India) on October 1st and re-entering USA after 1st Oct will enable L1,L2 status back (if COS has been applied for H1). Is this the only way to retain the L1/L2 status?
Ans5. In my view this is the best way. Leave on or before Sept 30th (or a day before COS kicks in) and come back on or after October 1st (or the day on which COS kicks in).

Qo6. .I entered US on a L1-B visa from a 'company 1' on a blanket Visa (L1-b) from India to USA in 2006.
2.Filed for H1 through 'company-2' in mar 2008.Approved as COS starting Oct 1st.
3.I did not/could not switch over to H1(company 2) till date due the lack of jobs matching my skills.
4.Would like to get back in status on L1 (My L1 visa and ITS I-94 are both valid till Nov 09 ).
5.Some people say that since L1 visa and its i-94 is valid, i can exit and re-enter the country with the L1 petition and that would put me back into status.
6.Continuing on point 6, once back on L1, i can file for H1 through a different company in future and i wont be counted against cap,is this true?
Would appreciate your responses as i am concerned that having been out of status since Oct1 would leave me with limited options.

Ans6. Ideally, to get back into status, you should apply for a NEW L-1 visa and come back into USA. There is a law on the books as far as I remember that says if you are ever out of status (which you are), all your visa stamps are "considered" canceled. This law, however, being next to impossible to implement is largely disregarded. Therefore, a lot of people in your situation just leave USA and come back with the same L-1 visa stamp. Theoretically, at least, that is not a perfect solution.

You will not be counted against the cap next time you apply for another H-1 as long as you have not been outside USA for one year.

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