H1 expired 1 mnth ago;on EAD; I-140 1 yr old; changing job- new employer says can't renew H1, will file new but quota over

Asked over 4 years ago - Columbus, OH

I'm trying to change jobs, and here is my situation:
Second term of H1 expired Dec 31, 09. Working on EAD since Sept 08 but have not used AP to travel outside the country. Have a copy of I-9 from the current employer showing the switch to EAD. Have an approved I-140 for over 1 year.

The new employer is willing to sponsor H-1, here is my big concern: Can the new employer sponsor an H1 for me even if the previous one expired?

The new company attorney said that they can not apply for H-1 because the I-94 and H-1 (total 6 years quota) have expired, even though I have approved I-140 for over a year. Is this true? They said that they would have to go through new H-1B quota which is full by now.

Thank you very much for your response.

Attorney answers (2)

  1. Shah Iqbal Nawaaz Peerally

    Contributor Level 19

    Answered . From the facts you have given, I do not see why you have to go through the quota again. You can do an H1B transfer as long as you can show an approved I-140 and that you maintained status under the adjustment of status (EAD as proof). However, there might be other issues involved in your case that the attorney is saying regarding getting back on your H1B extension. Talk to a good immigration lawyer.

    Good Luck
    Shah Peerally

    Founder and Managing Attorney of Shah Peerally Law Group PC
    Law Firm Deals in Immigration law, Bankruptcy & Debt Relief

    Note: The above answer is provided for informational use only. One should not act or refrain to act solely based on the information provided. No attorney client relationship is created unless a retainer is signed by the attorney and the client.

  2. Elaine Martin

    Contributor Level 15

    Answered . The new employer can petition for H-1B status, but you will not be approved as a change of status. You cannot change from and EAD to H-1B. Usually, CIS will only approved a change from one nonimmigrant (temporary) status to another. CIS should approved the H-1B petition, however in order to "activate" this H-1B status you would need to leave the US, get a H-1B visa at a consulate, and return in H-1B status.

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