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.
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.
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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.