H1 to H4 to H1

[ss12345]

Thanks for doing this service which helps many ppl's lives.

My employer applied for H1 extn last year (sept'08) and after my project ended in Nov'08, I left to home country in Dec'08 (I-94 expired)and I recently came back on H4. I heardfrom my employer that I got an RFE asking client letter and due date was May 4th. He did not respond since I didn't have project. Now I am in the process of project confirmation, and I have to be on H1 to start working again,
1) Do I have to apply for new H1 (non-cap) or just apply for H4 to H1 COS or both? if 'both' then can I apply both in one package under PP? Can I start working on receiving receipt number?
2) Can I apply H1 with the same employer, will there be a problem since he did not respond to RFE before? or can I apply for H1 transfer to a different employer using the previous H1 receipt number(is the receipt number still valid) or apply for new non-cap H1?

[martinvisalaw]

You need to file a COS from H-4 to H-1B. You cannot work until the H-1B is approved, because you are not in H-1B status now and therefore cannot use H-1B portability rules. You will not be subject to the cap since you have held H-1B status withing the past 6 years, and presumably not used a full 6 years.

Whether your last employer or a new employer files for a new H-1B status for you, it is still a new filing and any prior filings are not relevant, except to show that you are not subject to the cap.

By the way - this might get more comments if posted in the Nonimmigrant Visa section of the forum.