Query on Applying for Cap exempt H1B

[divinedew]

Hi,
Request your help on the following scenario:

- I was on H1B for 4 years with two extensions/visa stamped and moved back to India in June 2010 and stayed there for close to 2 years. The last approved H1B petition along with approved visa was from 10/2009 to 06/2010.
- I am back on L1A for the past couple of years and wish to move to H1B.

Questions:
1. Can I apply for a Cap exempt H1B through a new employer using my last expired H1B petition mentioned above.
if I can, is the limit as to when I can apply based on my last petition approval date + 6 years i.e I have till 10/2015 or will that change as I was away for more than an year.

2. If I am eligible for a cap exempt H1B, how will the duration of approval (if approved) be considered i.e If I get an approval will it be the remainder of the period of my previous H1 quota (6 years - 4 years = approx 2 years) or since I was away for more than an year, will (if) I get the H1 B approval for ( 6 years - my L1 duration) or is there another way this is calculated if I satisfy all the necessary criteria's and if my H1B is approved.

Appreciate your help.

Thank you.

[raghvi]

Hi,
Request your help on the following scenario:

- I was on H1B for 4 years with two extensions/visa stamped and moved back to India in June 2010 and stayed there for close to 2 years. The last approved H1B petition along with approved visa was from 10/2009 to 06/2010.
- I am back on L1A for the past couple of years and wish to move to H1B.

Questions:
1. Can I apply for a Cap exempt H1B through a new employer using my last expired H1B petition mentioned above.
if I can, is the limit as to when I can apply based on my last petition approval date + 6 years i.e I have till 10/2015 or will that change as I was away for more than an year.

2. If I am eligible for a cap exempt H1B, how will the duration of approval (if approved) be considered i.e If I get an approval will it be the remainder of the period of my previous H1 quota (6 years - 4 years = approx 2 years) or since I was away for more than an year, will (if) I get the H1 B approval for ( 6 years - my L1 duration) or is there another way this is calculated if I satisfy all the necessary criteria's and if my H1B is approved.

Appreciate your help.

Thank you.

1. If you haven't exhausted the entire 6 Years stay in US, and been cap counted in last 6 Years, yes it is possible to file a cap exempt petition. As for limit, there is ambiguity, but I would say within 6 Years of last on H1 status. If you are planning to use an old petition, your 1 Year Stay is immaterial.
2. It would be 6 Years - 4 Years. As I said, since you are using an old petition, your 1 Year stay outside is immaterial. If you want fresh 6 Years you would have to file fresh H1 petition.

This is my opinion not legal advice.