Past H1B holder (expired), returning after 3yrs, CAP still applicable?

[abhichit]

Hi,

The context: My H1B started Oct-01-2004, and was last renewed till Nov-17-2010 (I-797A receipt date: Dec-11-2009, notice date: Jan-15-2010). However, I left the US and my then-current employer on Apr-1-2010 to return to India. I have been in India till now, but will be returning back to the US on an L2 on Feb-20-2013. My plan is to get back on an H1B.
The question: Given my details above, do I still fall under the H1B cap that will open up on Apr-1-2013 for 2013-2014, or am I cap-exempt? Literature on the net indicates that I may be subject to the cap, but some personal sources indicate otherwise, so thought I'd take the advice of the experienced folks on this forum. Do let me know if I can provide any further info.

Regards,

[kabkaba]

You can claim cap-exemption since the last petition expired within the last 6 years and with that an immediate start date can be requested. But, you will only get the remainder period (6 years minus time spent in the US in H1 status).

Since you have spent 1 years outside the US, your employer can also file a cap-subject petition with a Oct 1 start date. That way you will get fresh 6 years. You can even utilize the L2 based EAD to work until Oct 1.

[abhichit]

You can claim cap-exemption since the last petition expired within the last 6 years and with that an immediate start date can be requested. But, you will only get the remainder period (6 years minus time spent in the US in H1 status).

Since you have spent 1 years outside the US, your employer can also file a cap-subject petition with a Oct 1 start date. That way you will get fresh 6 years. You can even utilize the L2 based EAD to work until Oct 1.

Thanks for the response kabkaba . As mentioned, my H1 started Oct-1-2004 so should have expired Oct-1-2010. However, my company filed for my GC so I was eligible for a 1-yr extension. Given the timing of the extension filing, my H1 was extended to Nov-17-2010. Does that mean that I no longer have any time left on my H1 to be cap-exempt, and will have to file as cap-subject?

[kabkaba]

Have you already spent 6 years in the US in H1 status? If yes, the cap-exempt petition will have to be based on the I-140 filed by your previous employer (if not withdrawn).