H1b - Cap Exempt Filing - RFE - Trouble


km.zaveri

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Hi All,

 

I have query regarding H1b cap-exempt filing.

 

One of the previous employers in India (who had parent company in U.S.) has filed H1b petition in April, 2007.  My case was selected in lottery and petition got approved, however, my visa stamping was pending and I left the employer in March, 2008

 

I have never been to U.S. till now and presently working in India only.

 

The petition was valid from 1st October, 2007 to 13th August, 2010.

 

Later the employer had revoked this petition in February, 2009.

 

I found another employer who had filed H1b Petition as Cap-Exempt using above petition in Premium Processing on 30th January, 2015.

 

On 10th February, 2015, case was put into RFE. The RFE talks that since earlier h1b petition has been revoked in February, 2009, this case is not eligible for transfer.  Please note that this is RFE not the decision and my employer/attorney is going to respond to that next week.

 

I have been following this group and have got many replies and suggestion that even if the petition is revoked after 1st October of filing year (of-course once it got approved), it will not have impact on current h1 filing transfer as cap-exempt.

 

I want to know how can this be possible.

 

I would like to know your suggestions and views in regard to responding to this situation.

 

Thanks,

-K M

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HI, I have not been to U.S. in my lifetime so. 

 

I had just h1b approved petition which was supposed to be expired on 13th August, 2010 which was revoked by my earlier employer after almost 1.5 years of its start date.

 

I had even never went to stamping on this petition.

 

Now I had filed H1b transfer as Cap-Exempt on this petition.

 

Do you think this case does not fall into transfer category ? 

 

Thanks,

-K M

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  • 3 weeks later...

They do not consider this case as valid transfer case as previous petition was revoked by original employer.  They had revoked it after 1.5 years of approval.  Surprisingly on this forums and even consulting Murthy Lawerys, I had not got any negative views on my case, still it has got rejected.

 

Thanks,

- K M

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They do not consider this case as valid transfer case as previous petition was revoked by original employer.  They had revoked it after 1.5 years of approval.  Surprisingly on this forums and even consulting Murthy Lawerys, I had not got any negative views on my case, still it has got rejected.

 

Thanks,

- K M

Thanks for the reply. There are two possibilities.

(1) Since you never used that approved H1B petition and it was revoked by employer probably the current interpretation of USCIS is that you were never subject to cap as you never got a H1B visa stamped and traveled with that approved petition.

(2) It might be an error from the part of USCIS to deny a cap exempt H1B petition.

 

Did your employer/attorney file a MTR?

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My Employer is not planning to file MTR, rather they would be filing in lottery in April, 2015.

 

Regarding the possibilities stated by you, I had questioned the same to this forums as well as Murthy lawer, but they all suggested to go for transfer as it is a valid case.

 

Even before denial, USCIS had given RFE regarding the transfer which was responded properly explaining them why it is a valid transfer case.

 

Even my employer had done 2-3 cases exactly same like me with Callifornia Center, where my application was filed and they were successful.  I am not sure why they had denied in my case.

 

-K M

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  • 4 weeks later...

Hi Jairichi and All,

 

I found another employer who is ready to file cap-exempt H1 on the basis of my earlier petition. (For the quota of April, 2007).

 

As described earlier, in the February, 2015, my another H1 Cap-Exempt application is denied on the basis of original petition.

 

Do you think Cap-Exempt h1 can be approved ?  Is it fine to go this way ?

 

-K M

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  • 1 year later...

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