Previous H1b revoked, Am a H1b cap exempt ?

[arjunmca]

Hi,

An employer Filed H1b for me, got 3 years approval. Went for Stamping, issued 221g yellow form in Sep 2010. Exactly after 1 year my employer requested USCIS to withdraw my H1b as it has been pending at the consulate. Then USCIS revoked my petition.

Can i come under H1b cap exempt to file a new H1b? Few people saying that my H1 status is not valid, i cant come under cap exempt. Is that true?

Thanks,

[sg1010]

I don't think you come under quota because your h1b was approved once in the last 6 yrs. So, I think you should be exempt from cap.

Did you check with an attorney?

[preetlily]

The USCIS has sent a notice indicating the intent to revoke . In the notice they have mentioned that I didn't establish proper employer employee relationship and they have asked for a list of documents to prove the relationship . My employer thinks that there is very low chance of approval . My employer is suggesting me to withdraw the case and file a new H1B with another employer . If I withdraw my H1b and re - file it with another employer then will it be considered as a new application or will I be cap exempt ? What do you think should be done ? Please help me with this issue . Anyone who has had similar experience , please share . I have limited time as I have to respond to the notice .

[Attorney_25]

It appears that if your employer is letting you make the decision as to handling the notice of intent to revoke, that there really is no employer-employee relationship.

If the H-1B is revoked for fraud/misrepresentation then USCIS could validly take the position that you were "uncounted" as to the cap and are subject to the cap with the next H-1B position.

This truly is a situation that need to be handled by a qualified immigration attorney.