I have a problem. And I need your help.
I have H1B petition approved. I have H1B visa issued.
Now I'm in Russia.
I was going to enter US for working for my employer on April 1st, 2012.
Thare were some probems with my employer and it closed my job position in March.
I had a job interview with a new employer and got an offer.
that I'm not a subject of cap and they can make H1B transfer and I can start right after the new petition will be filed.
Q: Can an H1b that was approved and never used be transferred from outside the country?
A: A transfer is nothing but a new H1b application that is not subject to the cap. If you have proof of prior approval (like the copy of I797 or a receipt number), a new employer can transfer the H1b even if you have not entered into the USA.
But my new employer's lawyer said that since I didn't enter US and didn't start working for my old employer -- I have to wait until October and only since October 1st I can start woring for my new employer -- so I'm a subject of cap. She quoted:
Section 214(g)(7) of the Immigration and Nationality Act (INA) provides, in pertinent part, as follows:
Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed.
Please, could anyone give me the reference supporting these Question and Answer?
I really need to change this lawyer's mind!