H1B not Subject to CAP eligibility

[Rohin_1227]

Dear Team,

 

I want to know whether I am eligible for H1B not Subject to CAP or not.

 

My background:

------------------------

I did my masters in U.S and got H1B in 2009. In 2011 April I traveled to India for stamping and got a 221 (g) based on employee and employer relationship. My Employer has submitted all the required documents in 2011, but still USCIS has revoked my H1 in 2012. I Gave up &  started working in India since from 2011. My current employer is planing to apply my H1 under "not Subject to CAP". I want to know whether I am eligible for "H1B not Subject to CAP" or not. Please help me on this.  My i797 got expired in 2012.  

[jairichi]

Yes, you are cap exempt.

[Rohin_1227]

Yes, you are cap exempt.

Hi Jai,

 

Thanks you so much for your reply.

 

In 2012, my Lawyer got the letter from the USCIS saying that they have revoked my petition because my employer has not followed the USCIS guidelines while applying the LCA.

 

My current employer is saying that we cannot apply for "cap exempt" because USCIS has revoked the old petition and it is no longer exists in the database.

 

Is it true that I am no longer eligible to apply for H1B under  "Cap Exempt"?

 

I got the below reply from my employer :

 

" You shared the letter with me from your Previous employer which was sent by USCIS intending to revoke your petition. Also, please find below the lines reflecting your petition was revoked.

 

USCIS website reflects the previous petition status as in RFE. we will process H-1B Transfer under not subject to CAP only when the USCIS website reflects the status of the previous petition as approved. Since the USCIS website does not reflect the status of your previous petition as approved, as I mentioned earlier you will not be eligible for H-1B Transfer under not subject to CAP."

[jairichi]

I believe that you are cap exempt since you were counted against cap once. Revoking of petition has no effect on future cap exempt petitions. Get in touch with an independent attorney.