Is the beneficiary Cap exempt?

[warrior]

My visa stamping is denied with the refusal notice as below and next action as contact DHS-USCIS.


My petition is valid till 05/30/2015 and appeared for visa stamping on 09/21/2014 and specified as admin processing
I had few queries
1.Am I exempt under cap or do I need to have a fresh petition during the next cap in FY15-16.
2.What is the next action for me or my employer?
3.Is my petition still valid?

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This office regrets to inform you that it is unable to issue a visa to you because you have been found ineligible for a visa under the following section(s) of the Immigration and Nationality Act (INA).
* Section 221(g) of the Act prohibits the issuance of a visa to anyone who has failed to present the documents required in connection with the visa application, or who has failed to submit sufficient credible evidence to support the claimed petitionable relationship. The following remarks apply in your case.
* The Beneficiary chose to withdraw his application related to this petition.
* Your case is administratively closed at the Consular Section. Consular officers apply a 'reasonable person standard' when evaluating the bona fides visa applications (9 FAM 42.43 N2.2 (3)). The basis of the return of a petition for revocation is also "evidence that USCIS did not have available at the time of adjudication and that such evidence, if available, would have resulted in the petition being denied". These facts establish that the petition is invalid.

Therefore, pursuant to 9 FAM 41.53 N2-3, the reviewing officer has decided that the petition should be returned to the U.S. Citizenship and Immigration Services (USCIS) with the recommendation that it be revoked. The process includes review by the Nonimmigrant Visa Chief. When USCIS receives the returned petition, they will contact Petitioner, who will have an opportunity to rebut consular findings concerning this case. If USCIS revokes the petition, the beneficiary may become ineligible for a visa under Immigration and Nationality Act Section 212(a)(6)(C)(i) (or other appropriate section). If USCIS reaffirms the petition, the petition will be returned to post for further processing. Additional information is available at the Internet site: http://hyderabad.usconsulate.gov/. WARNING: IF YOU FAIL TO TAKE THE ACTION REQUESTED OR FAIL TO PRESENT ADDITIONAL EVIDENCE SUFFICIENT TO OVERCOME YOUR VISA DENIAL UNDER SECTION 221(g) OF THE IMMIGRATION AND NATIONALITY ACT WITHIN ONE YEAR OF THE REFUSAL DATE, SEGTION^03(g) OF THE ACT REQUIRES THAT YOUR APPLICATION BE CANCELLED.
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[raghvi]

My visa stamping is denied with the refusal notice as below and next action as contact DHS-USCIS.


My petition is valid till 05/30/2015 and appeared for visa stamping on 09/21/2014 and specified as admin processing
I had few queries
1.Am I exempt under cap or do I need to have a fresh petition during the next cap in FY15-16.
2.What is the next action for me or my employer?
3.Is my petition still valid?

-------------------------------------------
This office regrets to inform you that it is unable to issue a visa to you because you have been found ineligible for a visa under the following section(s) of the Immigration and Nationality Act (INA).
* Section 221(g) of the Act prohibits the issuance of a visa to anyone who has failed to present the documents required in connection with the visa application, or who has failed to submit sufficient credible evidence to support the claimed petitionable relationship. The following remarks apply in your case.
* The Beneficiary chose to withdraw his application related to this petition.
* Your case is administratively closed at the Consular Section. Consular officers apply a 'reasonable person standard' when evaluating the bona fides visa applications (9 FAM 42.43 N2.2 (3)). The basis of the return of a petition for revocation is also "evidence that USCIS did not have available at the time of adjudication and that such evidence, if available, would have resulted in the petition being denied". These facts establish that the petition is invalid.

Therefore, pursuant to 9 FAM 41.53 N2-3, the reviewing officer has decided that the petition should be returned to the U.S. Citizenship and Immigration Services (USCIS) with the recommendation that it be revoked. The process includes review by the Nonimmigrant Visa Chief. When USCIS receives the returned petition, they will contact Petitioner, who will have an opportunity to rebut consular findings concerning this case. If USCIS revokes the petition, the beneficiary may become ineligible for a visa under Immigration and Nationality Act Section 212(a)(6)(C)(i) (or other appropriate section). If USCIS reaffirms the petition, the petition will be returned to post for further processing. Additional information is available at the Internet site: http://hyderabad.usconsulate.gov/. WARNING: IF YOU FAIL TO TAKE THE ACTION REQUESTED OR FAIL TO PRESENT ADDITIONAL EVIDENCE SUFFICIENT TO OVERCOME YOUR VISA DENIAL UNDER SECTION 221(g) OF THE IMMIGRATION AND NATIONALITY ACT WITHIN ONE YEAR OF THE REFUSAL DATE, SEGTION^03(g) OF THE ACT REQUIRES THAT YOUR APPLICATION BE CANCELLED.
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What exactly transpired in the interview? How confident are you of the genuineness of your employer's ability to provide you with consistent work for you?

Its clearly mentioned that the petition is being sent back for revocation. A petition once revoked would not be cap exempt.

1. I dont think you are cap exempt. Your employer will have to file a new petition.
2. They can file an appeal if they feel they had wrongly been judged or have additional things to show to USCIS to help their case.
3. I dont think your petition is valid.

This is my opinion not legal advice.