L2 EAD holder - no job, Can apply for H1B without being their employee?

[Teena1234]

I have recently shifted to US on L2 and my is EAD valid until July 2016. But don't have any job right now. I wish to apply for H1B through some consultant. Since I have an EAD, do I need to be an employee with the consultant before my H1B is filed?

Please advice ASAP. I would like to apply for H1 this year, but don't want to be on consultant's payroll before H1 is approved.

[raghvi]

I have recently shifted to US on L2 and my is EAD valid until July 2016. But don't have any job right now. I wish to apply for H1B through some consultant. Since I have an EAD, do I need to be an employee with the consultant before my H1B is filed?

Please advice ASAP. I would like to apply for H1 this year, but don't want to be on consultant's payroll before H1 is approved.

You need to understand that technically you don't apply for a H1, its always the employer who petitions the USCIS after getting LCA approved by DOL. So your, so called "consultant" would first get the LCA approved based on job nature and location, and then subsequently use that to file your H1 petition. Though I don't see any harm in it , you need not be on their payroll while all this happens. I believe its a fresh H1 and the earliest you would be able to move to H1 is Oct 2015, if H1 petition approved.

One thing you got to be careful though is to find out how the H1 is being filed. If the employer is filing H1 as COS, that is Change of Status from L2 to H1 then you must work and get paid by the H1 employer after H1 start date (01-Oct or later). If you don't get paid you would go out of status. This is one major difference between L2-EAD and H1. While on L2-EAD even if one doesn't work or get paid one doesn't lose status, but if one moves to H1 and doesn't get paid one goes out of status.

This is my opinion not legal advice.