Prior H1B Cap Approval Not Used and Petition Revoked-Is an H1B Not Subject to the H1B Cap Petition Possible?
I’m in India.H1B petition was picked in lottery and approved in 2014 and revoked in December 2014 by employer before stamping due to lack of projects (no fraud and no RFEs).I have never been to US on any visa. No H1 Status yet and H1B stamping was not completed. I have an offer now from another employer. He says the receipt number is still valid (in-fact for 6 years as it was never used) and a new cap exempt petition can be raised legally with previously approved I-797 though its revoked by previous employer. a) Is this legal and allowed as I never entered US? b) What are the guarantees of new cap exempt petition getting approved?
We have been successful in filing H1B new employment petitions not subject to the cap where the original H1B petition was filed more than 6 years ago and the H1B beneficiary had not obtained an H1B visa for the prior employer’s H1B petition or entered the US in H1B status. Although, not without contrary argument. We relied upon a USCIS Memorandum by Michael Aytes Dec. 5, 2006 at page 4 provides that this is available:
C. H-1B “Remainder” Option
Section 214(g)(4) of INA provides that “the period of authorized admission as nonimmigrant may not exceed 6 years.” INA section 214(g)(7) provides, in pertinent part, as follows:
Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.
In AAO Adopted Decision 06-0001, USCIS has confirmed that the six-year period of maximum authorized admission accrues only during periods when the alien is lawfully admitted and physically present in the United States.
Although, this would seem to be legally allowed and we have filed such petitions in the past. We cannot guarantee such approvals in the future. But, given the current H1B cap overload. It may be an options. Best of luck.