employer status changed from "cap-exempt" to "cap-subject"; H1B extension after approved I-140-NIW

[sengs]

I have an approved I-140 for EB2-NIW, with PD of Nov-10. My employer's status changed from a 'non-profit' hospital to a "for profit" hospital. My H1B expires (2nd one after I-140 approval) in December 2015. My employer lawyer is insisting that due to the change in tax status of the employer it is now "cap-subject" employer, and because my H1B (since 2005) was always filed under "cap-exempt" and never considered a "cap subject" I have to file a "cap subject" extension in April that will go through the lottery process. He is insisting that approved I-140 will not protect me from the lottery process.

 

Is it true that if I have an approved I-140 (EB2-NIW), I still fall under H1B cap because I was camp-exempt so far?

 

I would be grateful If anyone can help me to understand if this is true or false? 

 

Thanks