H1B Cap Exemption

[ws_india]

Hello,

Please find below details of my case along with queries:

Employer A filed an H1B for me in the year 2011 and the petition was approved. I went for stamping but the consulate denied stamping due to some more documents required by Employer A. In the year 2012 I was called for stamping but I did not go since I was out of country and had taken another job. In the year 2014 Employer A filed for petition withdrawal and it was successfully withdrawn as checked on USCIS website.

Now Employer B wants to file an H1B for me, so I have some questions on the same lines.

Q-1] Am I eligible for cap exempt?

Q-2] Does Employer A needs to be cap exempt employer for me to be eligible for cap exempt or that is not mandatory?

Q-3] Does Employer B needs to be cap exempt employer for me to be eligible for cap exempt or that is not mandatory?

Q-4] I do not have the original petition with me and the attorney has also denied to give copy of those. Can I get a copy of them from USCIS. If so how?

Q-5] What all previous petition documents are mandatory?

Thank You,
Indrajit

[shervin143]

Q-1] Am I eligible for cap exempt?
>>> Yes.

Q-2] Does Employer A needs to be cap exempt employer for me to be eligible for cap exempt or that is not mandatory?
>>> Not sure what you are trying to ask. There is no such thing as cap exempt employer. Are you asking about non profit organization? Any U.S employer can file a petition for you and use your previous approval notice to file the new one under cap exempt category.

Q-3] Does Employer B needs to be cap exempt employer for me to be eligible for cap exempt or that is not mandatory?
>>> Again. Not sure what you are asking. Any U.S employer can file a petition for you and use your previous approval notice to file the new one under cap exempt category.

Q-4] I do not have the original petition with me and the attorney has also denied to give copy of those. Can I get a copy of them from USCIS. If so how?
>>> You cannot get it from USCIS. It is employer's property. Do you at least have a copy of the previous approval notice. All that you need is a copy to prove that you are already CAP counted.

Q-5] What all previous petition documents are mandatory?
>>> Copy of H1B approval notice.

[ws_india]

Hello Shervin,

Thanks a lot for quick reply and valuable information provided.

On Pt #2 & #3 sorry for the confusion - I thought the employer needs to be cap exempt like Non Profits only can file my H1b with cap exempt even if I am cap eligible

#4 & 5 - I only have copy of email forwarded by my previous employer that he received stating my H1B was approved with case number and I-797 will follow in mail but the employer did not send me the email that had I-797 copy.

Is requesting - Freedom of Information Act (FOIA) to USCIS an option?

Regards,
Indrajit

[ws_india]

Thank You Shervin.

For #2 & 3 - I just wanted to know if any US employer can file the petition

For #4 & #5 - I just have an email forwarded from USCIS to my previous employer that my H1B was approved. Can I submit Form G-639 requesting the documents?

[raghvi]

Thank You Shervin.

For #2 & 3 - I just wanted to know if any US employer can file the petition

For #4 & #5 - I just have an email forwarded from USCIS to my previous employer that my H1B was approved. Can I submit Form G-639 requesting the documents?

Didn't you carry a copy/original I797 when you initially went for stamping ?

[anubhav_st]

Shervin, what would be the case if the stamping was denied and later case was revoked by USCIS. Would it still be CAP exempted?

Q-1] Am I eligible for cap exempt?
>>> Yes.

Q-2] Does Employer A needs to be cap exempt employer for me to be eligible for cap exempt or that is not mandatory?
>>> Not sure what you are trying to ask. There is no such thing as cap exempt employer. Are you asking about non profit organization? Any U.S employer can file a petition for you and use your previous approval notice to file the new one under cap exempt category.

Q-3] Does Employer B needs to be cap exempt employer for me to be eligible for cap exempt or that is not mandatory?
>>> Again. Not sure what you are asking. Any U.S employer can file a petition for you and use your previous approval notice to file the new one under cap exempt category.

Q-4] I do not have the original petition with me and the attorney has also denied to give copy of those. Can I get a copy of them from USCIS. If so how?
>>> You cannot get it from USCIS. It is employer's property. Do you at least have a copy of the previous approval notice. All that you need is a copy to prove that you are already CAP counted.

Q-5] What all previous petition documents are mandatory?
>>> Copy of H1B approval notice.

[shervin143]

That depends on why the petition was revoked. If it is not because of fraudulent activity, then you can still claim to be CAP exempted using the previous H1B approval notice.

Shervin, what would be the case if the stamping was denied and later case was revoked by USCIS. Would it still be CAP exempted?

[ws_india]

Hello,

An update my new employer did file an H1B petition but we received an RFE from USCIS stating that the petition cannot be considered as cap exempt petition since I was never in H1B status. Are I 129 approvals not cap exempt as mentioned below in your reply to my original post? If i get a denial is it worth to file an appeal?

Thank You

[sreinee]

H1B cap exemption

Hello,

An update my new employer did file an H1B petition but we received an RFE from USCIS stating that the petition cannot be considered as cap exempt petition since I was never in H1B status. Are I 129 approvals not cap exempt as mentioned below in your reply to my original post? If i get a denial is it worth to file an appeal?

Thank You

Hi,
Do you have any further updates on your H1B, since I am in the same situation as you are.