Confusion on cap exemption

[Kanchan123]

Hi,

I am in a great confusion and getting contradictory replies to this question.

I have one approved H1b petition filed by an employer while I was in India. The visa was also stamped.

I never visited US through that petition and visa and the 3 year period of that (before renewal) got expired but the 6 year cap is still valid.

Then I left that employer who filed my petition.

Now I am on H4 and looking for COS to H1. I am not sure whether the employer who filed the petition has revoked it or not.

Just in case the employer has revoked it, can a new employer file a new petition using the cap from existing petition and can I be cap-exempt?

Kindly suggest.

[Kanchan123]

hi.. could someone please reply to this

[pontevecchio]

In both cases a neqw H1 petition needs to be filed and decided on merits. You have been cap counted. Hence you do not need to be cap counted again. It makes no difference either way.

[sivad]

change of status from any visa to H1b will be cap subject... If its a H1b transfer then it will not be cap subject.

[livliv]

A new petition will be cap-exempt irrespective of whether the previous petition was revoked or not. You will need to provide the new employer with the old approval or receipt notice copy.

[pontevecchio]

"change of status from any visa to H1b will be cap subject"

This statement is absolutely untrue.

[Kanchan123]

thanks everyone for the reply. relaxed to know that I dont have to go through the cap.

[hpagey]

If you have had h1b status within last 6 years you are not subjected to the cap.