Unused H1 B revoked. Am I eligible for H1 transfer or for applying new H1 under cap exemption.


I am in a very critical situation. My sponsor filed for my H1 on 2015 and my H1 was approved on July 2015. However, my sponsor never gave me the approval notice even after continuous follow ups. Meanwhile my spouse was to travel to US and hence I entered US in H4 visa. I continued to follow up with my sponsor regarding my approval notice but did not receive any reply. Hence with the help of an attorney I filed for FOIA request to get the papers myself. As the result of FOIA, I received the I129 copy that was filed clearly mentioning the Approved status and the dates until which it is valid. I received this copy on Jul 6, 2016. With this proof, I am currently trying to find a employer who could do an H1 transfer. Meanwhile, today when I checked the USCIS site with my receipt no, the status shows that my visa was revoked on June 10th, 2016.

I have the following questions – Please clarify.

  1. Can I still use this receipt no. to do a H1 transfer ?
  2. If H1 transfer cannot be done, can I atleast file for a new H1 under cap-exempt condition. ?
  1. Yes

  2. H-1 transfer and cap-exempt petition are one and the same thing.

It is good to know that you applied FOIA to get the receipt details. Do you mind sharing your experience as there are lot of people who want to do that, and this would provide them more understanding. Thanks

Thanks for your reply Saurabh. Gives me hope to some extent.

Regarding my FOIA experience - All my sponsor gave me was the receipt no. To make sure that the visa was in my name I tried to get my papers related to my Visa. An FOIA request can be filed free of cost by the individual himseld. All you need to do is fill up the G-639 form and follow the steps mentioned in USCIS FOIA site.

Since I was already in enough issues, I sort an attorney’s help and he filed the FOIA request for me.

My request was considered under Track One and I received the papers after 40 days. Even though I was expecting to receive the approval notice - I 797, I did not get that as 797 form is considered to belong to an Employer’s. Instead I got the I-129 form which included an USCIS stamp mentioning that the case is Approved along with the from and to dates for which my visa is valid.

you should be able to file for h1b cap exemption since your visa was
a) Counted less than 6 years ago
b) Visa validity is still valid
c) doesnt matter if you were revoked, withdrawn or approved. you are still cap exempt. (note: denials do not qualify for cap exemption).

I am in similar situation. I have an approved h1b petition in 2012 and expired 2013. I did not go stamping on that visa. I filed h1b cap exempt last week, premium processing… keeping fingers crossed.

i notice you seem to know alot on immigration subject matter. Are you providing legal advice or just anecdotal experience?

Thanks for the reply Aditya.

Wish you all the very best for your visa processing. Please do keep us posted on the status.


I too had the same question as Aditya. Do you provide legal advice . Have you come across scenarios such as mine?

I dont provide legal advice, I am consultant just like you. I am on the same boat as you though. My h1b was approved in 2013 for 1 year. Howver, I did not stamp or use it. I came here on L1, now want to convert to H1. I am using my prior approval case number to apply for cap exempt H1b

@Aditya, Is your previous H1B in approved status or revoked? I ask as that may be the difference in your and OPs application.

if i check my case status now, it says “Case has been approved”. I agree that my case and OP’s case is different since OP’s probably has “Case has been revoked”. However, I believe we can make sure of the same law. IE - IF H1b has been picked in the lottery in the last 6 years (regardless of approved or revoked), the petitioner wont be subject to the lottery again.

check this out as well.

I am no legal expert, and just provide advice based upon what I learn online on attorney sites, blogs etc. Most of the time it is on mark, but there are exceptions as I am still learning :slight_smile:

If the previous H-1 was withdrawn based upon employer’s request, then it won’t impact future cap-exempt petitions. However, if the petition was revoked b/c USCIS later determined more information about the case (on their own or through consulate), then it may not be used as basis for cap-exempt purposes.

Hi Aditya, could you please provide an update on what happened to your h1b cap exempt application?
[I mean to ask about you having an approved h1b petition in 2012 and expired in 2013. You did not go stamping on that visa. You filed h1b cap exempt somewhere in 2016]

I am going to fall in a similar situation and would be grateful if you could tell me your experience.

Hi Thina, could you please share your experience. Were you able to get cap exemption even after your old H1B petition was revoked by your old sponsor?