RFE on H1B Transfer because of previous incorrect H1B Approval

[neokronic]

Hello,

I think I have a unique case in which USCIS has first approved my case but now realized that they may have made mistake in the past when reviewing my H!B transfer request. What are my options? Here are more details:

I graduated from US university with a STEM degree Dec 2012 and began working on OPT from Feb 2013. Company A has filed an H1B in April 2014, which was picked up in the lottery but subsequently was issued on RFE on July25. This RFE was responded to on Oct 7. After this, I found an opportunity with Company B, which filed a fresh H1B petition using the receipt number from the H1B filed by Company A on Nov 24 via Premium processing. At this time, the original petition was still under review and the new petition clearly stated that I have an existing petition which was issued an RFE, responded and is in review. This petition from company B was approved on Dec 3. Since the petition was approved, I joined this company B and started working from Dec 22.  Later, I got to know that the H1B petition from employer A was denied. Since I already had the approval from employer B, I thought I should be okay and was not bothered about the denial. My H1B extension petition was also filed in April 2018 and received approval on Jun 2018.. which is valid till Oct 2020.

In Jul 2018, It so happened that I found and accepted another job with Company C. Company C filed my H1B transfer on Jul 30 2018.  USCIS issued an RFE to this application saying that I was not cap-counted in 2014 as my first H1B petition from employer A was eventually denied. When I checked my notes, the attorneys from Company B clearly told me in 2014 that they can use the cap number that was used by the previous employer and they were 100% sure about it. But my current attorney from Company C, says that that was wrong . Company C attorney also says that USCIS may have erroneously approved the application earlier and may revoke it(the approval with company B) now altogether. Is this possible at all? 

So, right now, I don’t know which attorney to believe or what course of action to take. Looks like the attorney from company C has concluded that there is no way they can defend the situation since they tell me that RFE says that the USCIS believes that I was not subject to cap in 2014 and hence cannot be treated as a cap-exempt for this H1B Transfer.

I am really confused and worried that things have gone south when I applied for this transfer and need some guidance on how to proceed.

[NotAnAttorney]

Sorry for the situation.

But the attorney of company C is right.

Are you with B or already joined C on receipt?

If you are still with B, highly recommend you to stay where you are. Also I have a friend whose transfer to a company got denied due to cap-exempt issue ( though the root cause was different). Eventually that petition got denied. But when another new employer filed for transfer it got approved.

If we go by book, all your future petitions will be denied, but if you go by luck there is still a chance.

 

[gouthamsworld]

Based on my knowledge Company C attorney is correct. 

[adshah84]

You need to check with attorney. You can contact murthy firm as well.  

[JoeF]

The lawyer from company C is correct. Your H1 is invalid. This can result in you being declared illegal retroactively, which could mean you'd be banned for 10 years.

You have to stop working immediately. Consult with a good immigration lawyer, e.g., the firm of Murthy, about your next steps. As I see it, you have to leave the country, but I am a lay person.

[JoeF]

9 hours ago, NotAnAttorney said:

Sorry for the situation.

But the attorney of company C is right.

Are you with B or already joined C on receipt?

If you are still with B, highly recommend you to stay where you are. Also I have a friend whose transfer to a company got denied due to cap-exempt issue ( though the root cause was different). Eventually that petition got denied. But when another new employer filed for transfer it got approved.

If we go by book, all your future petitions will be denied, but if you go by luck there is still a chance.

 

Even if something is approved it would be in error and will just cause lots more problems later on, when USCIS realizes the error.

[neokronic]

14 hours ago, JoeF said:

Even if something is approved it would be in error and will just cause lots more problems later on, when USCIS realizes the error.

Thanks all for sharing your insights.

I researched the entire rulebook for filling the I129 form(the H1B application) here  https://www.uscis.gov/sites/default/files/files/form/i-129instr.pdf  

Page 11 and 12, section 7 talks about claiming cap-exempt if "The beneficiary of this petition has been counted against the regular H-1B cap or masters cap exemption; and" 

So, Looks like my attorney at Company B implied the tern 'counted' in the above sentence literally and used the receipt # of the first application and claimed cap-exempt on the petition, which is not entirely incorrect as I am cap-counted as it was picked in the lottery and the H1B was NOT denied when this application was filed. I believe the guideline itself is little open-ended. i.e the guideline doesn't say explicitly that the first H1B needs to be approved so that the next H1B can claim cap-exempt. OR is there is a specific rule which says that explicitly that I did not find or read ? 

All other aspects of my application are perfect as I had full-time roles with product based companies which exactly matches the skills and expertise that I have. There was no willful misrepresentation or unlawful presence in my history. 

Any additional insight would be appreciated immensely. 

[JoeF]

You are not cap-counted when the petition is selected. You are only cap-counted when the petition is approved.