H1B filing while waiting for EAD renewal

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floydtrivia

Registered Users (C)
Hey guys:

I had my H1B with my previous employer and the H1B I had with them was valid till March 2009. I switched jobs this year in March and I didn't ask my current employer to transfer my H1B since I had my EAD & didn't realise that I am not allowed to work if I don't get my EAD before the expiration date. I wonder why the rules are different for H1B extension/transfer vs. EAD renewal. I made a big mistake of not requesting my employer to transfer my H1B.

I asked my employer if the transfer can be done now and they said that its impossible. They also said that they cannot even file for new H1B since the quota is over for this year.

It's been 100 days since I filed for EAD renewal. I have an Infopass appointment tomorrow. I really have no hopes since interim EAD is out of question.

Is there any way that I can transfer or request my employer to file for H1B ?

Please advice !

Thanks in advance !
 
floydtrivia said:
I wonder why the rules are different for H1B extension/transfer vs. EAD renewal.
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Because H-1B is a non-immigrant status, EAD is not.

I asked my employer if the transfer can be done now and they said that its impossible. They also said that they cannot even file for new H1B since the quota is over for this year.
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There is nothing stopping your employer from filing an H-1 petition on your behalf, provided your old H-1B was subject to the cap. Under H-1 portability, you should be able to start work immediately. Once it is approved, however, you will most likely need to leave the US and re-enter.
 
Thanks a lot for your prompt reply. Then I wonder why my company's attorney is saying that "The available new H-1B numbers were exhausted on April 1st 2007, so we would be unable to file a new H-1B for you until April of next year".

Are you suggesting that my employer can file my H1B even though the quota is over ? I am still within the 6 year period.
 
floydtrivia said:
Then I wonder why my company's attorney is saying that "The available new H-1B numbers were exhausted on April 1st 2007, so we would be unable to file a new H-1B for you until April of next year".
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Because they're probably clueless about the cap rules.

Are you suggesting that my employer can file my H1B even though the quota is over ? I am still within the 6 year period.
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That's exactly what I'm suggesting. Filing an H-1B for a person who was originally subject to the cap but has not used up the 6 years and has not left the US for a full year is automatically cap-exempt.
 
Thanks a ton ! You made my day. I confirmed with one of the attorneys who I know from my previous company. He also agreed with you.

Thank you again !
 
Is it vital that I should not have left U.S. in the past 1 year ?

I left U.S. on Nov 03 2006 for India and came back on Nov 27. when I left U.S., I gave them my I94 from H1B at the gate and when I returned, I used my parole to enter. Does that matter ?
 
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