Am I H-1B Cap Exempt?

If a foreign national had an H-1B approval based on being selected in the H-1B lottery, but the H-1B was revoked in the same fiscal year where the individual’s H-1B was counted, would this individual still be  H-1B Cap exempt?

Scenario 1 – Never entered the United States to work:- Not H-1B Cap Exempt

Based on H-1B regulations, “when an approved petition is not used because the beneficiary does not apply for admission to the U.S., the petitioner shall notify the Service Center Director who approved the petition that the number(s) has not been used.  The petition shall be revoked . . . and USCIS will take into account the unused number during the appropriate fiscal year.” 8 CFR 214.2(h)(8)(ii)(C). Thus, even if a foreign national had an H-1B approval, if the beneficiary does not come to the U.S. to work for the petitioner and the H-1B was revoked after the H-1B employer notified the USCIS of this matter within the same fiscal year, then the individual will no longer be H-1B Cap Exempt. If the individual wants to work in the United States under H-1B classification, then the H-1B petitioner / employer would need to file new H-1B cap subject petition under the H-1B lottery program.

Scenario 2 - Entered United States to work:- H-1B Cap Exempt

The H-1B employer is required to notify USCIS that the H-1B worker has resigned and his employment is terminated pursuant to 8 CFR 214.2(h)(11)(i)(A).  If the H-1B visa holder worked for the H-1B petitioner in the United States and then resigned from the H-1B employment within the same fiscal year, the H-1B worker will be H-1B cap exempt if H-1B transfer by a new H-1B employer is submitted to USCIS before the resignation is submitted to the first employer.