USCIS recently began adopting different position on three types of H-1B petitions that were consistently treated as cap exempt cases in the past.
Cap-Subject If Counted Prior to the Past Six Years
In years past, USCIS routinely approved H-1B petitions for individuals who were previously granted H-1B status, no matter how long ago, provided they have not exhausted the maximum six-year limit. Such individuals had the choice to be exempt from the annual cap and receive H-1B status for the remainder of the six-year limit. Recently, however, USCIS began denying the H-1B petition when the H-1B beneficiary was counted against the cap more than six years ago and has not been in the US in H-1B status for more than one year.
H-1B Beneficiaries Approved for Next Fiscal Year Cannot Transfer Until After October 1st
Historically, USCIS has allowed first time H-1B beneficiaries, who have been approved for H-1B beginning the next fiscal year, starting on October 1, to file a change of employer H-1B prior to October 1. However, USCIS has taken a new stance and now will not approve an H-1B changing employer petition unless the petition was filed after October 1st (i.e., after the validity period starts).
Approved for H-1B but Never Activated H-1B Status or Applied for Visa
H-1B beneficiaries who received an H-1B approval in previous fiscal years, but have never spent time in H-1B status in the U.S. or applied for an H-1B visa at a U.S. Embassy or Consulate, are now considered to be cap-subject.
It remains to be seen if USCIS will continue to hold these troubling positions.