Legal Question in Immigration Law in New York

Re: Cancel H-1B application

As an employee you don't withdraw applications or file new ones -- this is done by employers. However, once you are in a valid H1-B status, you are free to change employers and your new employer may be able to hire you without having to wait for its petition to be approved by USCIS first. This is what is known as H1-B "portability" -- the ability to go from one employer to another without having to wait for the approval of the new employer's petition. What's more, the old employer generally cannot prevent another employer from petitioning for you.

In order to qualify for "portability," though, you have to satisfy the following conditions:

1) You must have been lawfully admitted to the United States,

2) The new H-1B employer must file a petition with the INS on your behalf, before your period of stay expires; and,

3) After your lawful admission to the United States, you must not have been employed without authorization.

If you meet all three of these criteria, you may start working for the new employer as soon as your new H-1B is filed with the INS.

Now back to your situation. The cap for fiscal 2006 has been reached back in August. If, as you say, your original employer, only filed for your H1-B but not received the approval, it is too late and you are out of luck for this year. If the approval was received already, then you are free to move to another employer willing to sponsor you for H1-B without being subject to the cap. Check with your employer as to the exact status before you act and consult an immigration attorney for details and strategy.

The above reply is in the nature of general information, is not legal advice and should not be relied on as such.