Old H1 visa revoked by employer since almost 6 years, Am I still CAP exempt?

USA H1B Visa
1

Hi, I had my previous H1 B petition approved in June 2017 while on OPT and got
successfully stamped in India in Dec 2017 for 3 years. But due to some personal reasons, I decided to not come back to US and my employer withdrew the petition and thereafter the USCIS revoked my case. My question is, Im actually entering the USA now
on F1 visa (day 1 CPT college). So once I find an employer who can sponsor H1 ,will I be cap exempt or non cap exempt in my specific case?

2

Once approved under cap-subject you are cap-exempt to claim any remainder time of 6 years.

3

Thanks Kalpesh for your time and reply. I appreciate it a lot. By the way, I would like to clarify one more thing which I missed mentioning. I had never travelled to US and never been on H1 status for a single day. I just got H1 stamping done. Will that affect my cap exemption?

4

This is okay, your new H1B employer can file cap-exempt based on the copy of original I-797 approval notice and copy of visa.

5

Hi Kalpesh,

Recently, After my employer filed a cap exempt petition, I received an RFE stating that I wouldn’t be considered cap exempt as I was never in the US on H1 status. Do you know any beneficiaries that got approved with same situation as mine? Could you please provide some leads for my case? Thanks in advance :pray:

6

Unfortunately I do not have any references or contacts but USCIS has been a hit or miss with this scenario. This depends on the officer processing your petition and sometimes they argue that as you didn’t enter the US, your H1B is technically not “activated”.
Talk to your employer’s attorney and see if they have any references from their clients or from any past USCIS litigation.
USCIS rule for cap-exempt do not explicitly mention about requirement of the beneficiary to be in the US to be able to qualify for cap-exempt to claim the remainder time on their cap-subject H1B, so may be your attorney can references the law and counter USCIS by responding to the RFE. I would also recommend consulting another attorney for a second opinion if your attorney sides with USCIS.