Dear jairichi, Approved H1b withdrawn before Oct 1st. Am I Cap Exempt?

[petey2428]

Hi Jairichi,

 

Company A sponsored my h1b earlier this year which got approved. I left company A to join company B, so company A withdrew my approved h1b before Oct 1st. I am currently working at Company B on my OPT. Can company B file a cap-exempt application for me?

 

Originally, it seemed like there shouldn't be a problem. I read that approval is the only condition and that a withdrawn approved h1b before Oct 1st should not effect anything. But now, I'm hearing different things and I'm scared. I decided to quit company A because of the opinions on this blog, and now I'm hearing conflicting opinions. From your experience, have you seen or heard people in my situation who were able to successfully file a cap exempt petition from an approved h1b that was withdrawn before Oct 1st?

 

Thank you so much for your help!

[JoeF]

If the H1 gets revoked before the start date, the number is returned to the pool,, according to a USCIS memo, and you would be subject to the quota.

This is nothing all that new, btw., and I am sure has been covered here.

And please use common sense. It is never a good idea to make decisions based on anonymous forum posts. You should have consulted with an immigration lawyer.

[jairichi]

Kindly do not post queries specifically asking me for my opinion. They are lots of amazing experts here.

Yes, looks like USCIS has kind of clarified or taken a stand this year that if a cap subject is withdrawn before start date then the beneficiary is no longer entitled to be cap exempt. I am not 100% sure about this. I have not come across anyone who had given a detailed description of this issue. I would suggest you to consult with an attorney from Murthy law firm over the phone.

[itsmeusa]

I am just stating (in blue font below) what I have been posting on this forum again and again when such questions on cap exempt came up. But I stopped replying to posts on cap exempt eligibility lately due to conflict in the replies posted. I hope we could give correct information to whoever is seeking our opinions. Of course, they must also go to immi. lawyer to seek legal advice.

 

Cap Exempt is considered ONLY when H-1b petition was approved by USCIS + H-1b visa was granted by US consulate OR COS to H-1b was granted by USCIS.

 

Now, What position USCIS has taken this year - please read below RFE from USCIS on similar case in Aug-2014.

 

“The petition was received by USCIS on August 1st, 2014 and was designated by the petitioner as a filing that was exempt the numerical limitations due to the beneficiary having been previously granted status as an H-1B nonimmigrant in the past six years.”

“However, USCIS records show that the beneficiary was not previously issued an H-1B nonimmigrant visa nor has he in the past changed status to that of an H-1B nonimmigrant. Furthermore the receipt number provided by the petition as evidence of the H-1B petition previously granted on the beneficiary’s behalf shows that EAC********** is a petition filed for the 2015 fiscal year that was approved for a change of status to occur October 1, 2014. As the beneficiary has not yet been issued a visa or changed status to that of an H-1B nonimmigrant at the time of filing the instant petition, the instant petition cannot be accepted as a filing exempt the numerical limitations for the 2015 fiscal year.”

[petey2428]

Thank you for your response!

 

I have talked to my company's attorney. She said I should be fine, but she also said that she doesn't have any experience with this kind of case, so I'm not confident if I can believe her. 

 

Cap Exempt is considered ONLY when H-1b petition was approved by USCIS + H-1b visa was granted by US consulate OR COS to H-1b was granted by USCIS.", since my peitition was approved, I should be cap exempt. Does anyone have an official memo to back or contradict this? 

 

Does anyone have stories or experience to share? Thank you! I really appreciate it!

 

I am just stating (in blue font below) what I have been posting on this forum again and again when such questions on cap exempt came up. But I stopped replying to posts on cap exempt eligibility lately due to conflict in the replies posted. I hope we could give correct information to whoever is seeking our opinions. Of course, they must also go to immi. lawyer to seek legal advice.

 

Cap Exempt is considered ONLY when H-1b petition was approved by USCIS + H-1b visa was granted by US consulate OR COS to H-1b was granted by USCIS.

 

Now, What position USCIS has taken this year - please read below RFE from USCIS on similar case in Aug-2014.

 

“The petition was received by USCIS on August 1st, 2014 and was designated by the petitioner as a filing that was exempt the numerical limitations due to the beneficiary having been previously granted status as an H-1B nonimmigrant in the past six years.”

“However, USCIS records show that the beneficiary was not previously issued an H-1B nonimmigrant visa nor has he in the past changed status to that of an H-1B nonimmigrant. Furthermore the receipt number provided by the petition as evidence of the H-1B petition previously granted on the beneficiary’s behalf shows that EAC********** is a petition filed for the 2015 fiscal year that was approved for a change of status to occur October 1, 2014. As the beneficiary has not yet been issued a visa or changed status to that of an H-1B nonimmigrant at the time of filing the instant petition, the instant petition cannot be accepted as a filing exempt the numerical limitations for the 2015 fiscal year.”

 

[itsmeusa]

Please read this post - http://forum.murthy.com/index.php?/topic/72359-h-1b-cap-exemption-issues/

 

This cap-exempt issue is complicated and only immi. lawyer can help. But it's USCIS way of interpretation whether to consider you for cap-exempt or not. Like I posted above, USCIS clearly tells cap-exempt is possible if H-1b visa is approved or COS was approved. Of course, these 2 things happen only when H-1b petition is approved. 

 

Best luck!