H-1B cap : Am I counted towards it?

[Ok56]

Hi,

This is to get opinions whether I have been counted against 2014 H-1B cap or not
and whether an H-1B cap-exempt petition can reuse that cap if I have been counted.

Facts:
1] Company A applied for H-1B petition(cap-subject) in April 2014 and got it approved in May 2014.
2] I left Company A on Sept 2014 while I was still on OPT-F1. I am still on OPT-F1(STEM) as of now valid until next July 2016.
3] Company A revoked the approved H-1B petition on Jan 2015, that is *after* the H-1B effective date.
4] Now, Company B is applying for an H1-B Cap-Exempt petition to reuse my H1-B cap from 2014.

What are the chances that I get through Company B's H-1B Cap-Exempt petition?

My research so far on my chances:
1] Recently, a USCIS representative over phone confirmed that I have been counted towards H-1B 2014 cap.
2] H-1B cap got activated on Oct 1st, 2014 since the petition was revoked only in Jan 2015.
3] I never *effectively* switched to H-1B by *working* with Company A as of Oct 1st, 2014 or after.
However, this just implies that I don't have an H-1B visa that can be transferred and has *no* impact on
the H-1B cap's validity as of now, as the revocation of the respective H-1B petition has happened after
H-1B effective date.
Many articles and internet discussions second my above research. So, feeling positive.

Now, please let me know your thoughts.

Thanks.

[kabkaba]

First, check if the H1B petition was filed with change of status or not. If filed and approved with change of status, your status did change to H1 and F1 status ended. That makes things very complicated. Also check with your school's DSO whether your SEVIS record is still active. Did you inform them of the employment change as you were required to?

After you get clarification on the above, then worry about cap-exempt or not. I don't think there is a clear policy on this matter. It is very subjective and at USCIS's discretion. If your employer has a very good attorney, they may be able to file the case properly and get the desired outcome.

[Ok56]

First, check if the H1B petition was filed with change of status or not. If filed and approved with change of status, your status did change to H1 and F1 status ended. That makes things very complicated. Also check with your school's DSO whether your SEVIS record is still active. Did you inform them of the employment change as you were required to?

After you get clarification on the above, then worry about cap-exempt or not. I don't think there is a clear policy on this matter. It is very subjective and at USCIS's discretion. If your employer has a very good attorney, they may be able to file the case properly and get the desired outcome.

Actually, informing school and having a data-fix done to correct my SEVIS record prior extending
my OPT-F1 with STEM, and all that have been done. And as I have already mentioned in my first
post, I am currently on a valid OPT-F1 STEM.

Also, the approved H-1B has been revoked already. My first post has all the details.

Yes, my next employer is aware of all of these and I am working with them to get through
a cap-exempt petition. I am *just* trying to see what people here have to say about whether
I was counted for 2014 H-1B cap or not given the already posted scenario.

Cheers.

[Ok56]

First, check if the H1B petition was filed with change of status or not. If filed and approved with change of status, your status did change to H1 and F1 status ended. That makes things very complicated. Also check with your school's DSO whether your SEVIS record is still active. Did you inform them of the employment change as you were required to?

After you get clarification on the above, then worry about cap-exempt or not. I don't think there is a clear policy on this matter. It is very subjective and at USCIS's discretion. If your employer has a very good attorney, they may be able to file the case properly and get the desired outcome.

So, in other words, is there any way to check the cap number is still with me? Like we do for case status, etc, is there any website
where I can check such a thing?

Thanks.

[kabkaba]

I don't think there is a clear policy on this matter. It is very subjective and at USCIS's discretion. If your employer has a very good attorney, they may be able to file the case properly and get the desired outcome.

[Ok56]

I don't think there is a clear policy on this matter. It is very subjective and at USCIS's discretion. If your employer has a very good attorney, they may be able to file the case properly and get the desired outcome.

Sure. Even I am thinking so. I am providing as much precise documentation as possible to my next employer attorney so that they can prepare a strong petition. Hope things work out as expected.

Yeah, there have been number of similar cases on H-1B transfer which are not applicable to me as I don't have an H1-B visa to be transferred. But, so far, there's none that I have come across *exactly* same as mine. So, I am trying to provide a proof to my next employer attorney that I still
have H-1B cap from 2014 that can be reused in my cap-exempt petition. I think this would make my H-1B cap-exempt petition even stronger.

Thanks for sharing your thoughts.

Cheers.

[Ok56]

Approved.

UPDATE: Got the approval for my H-1B cap-exempt petition filed. No issues whatsoever.

Tip for others in a similar situation : Never be afraid of looking into the rules and regulations
defined in USCIS CFR. That is the bible on which you can base your argument any time.
Regardless of anything, keep faith and try to prepare a strong petition with a good team
of lawyers/attorneys, with clear proof of eligibility for the petition being filed. Leave the rest.

Note : Not a legal advice. Just sharing my journey from uncertainty to certainty.