Urgent- H1 expired end-Dec;on EAD; I-140 1 yr old; changing job with new H1?

[mrsdyk]

I'm trying to change jobs, and here is my situation:
Second term of H1 (6 yrs) expired Dec 31, 2009. Working on EAD since Sept 2008 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, so 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.

Thanking you in advance for your answer.

 

[ginnu]

I'm trying to change jobs, and here is my situation:
Second term of H1 (6 yrs) expired Dec 31, 2009. Working on EAD since Sept 2008 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, so 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.

Thanking you in advance for your answer.

The new company attorney is correct. new employer could have filed H1 transfer if you have valid I-94 your I-94 got expired in december and you also used EAD for work.