Cap Counted More Than 6 Years, H1B Status Less Than 6 Years - Cap Exempt Application?

[daj857]

I haven't seen a direct response for this as yet, and it's a relatively rare set of circumstances but thought I'd ask the question:

Graduated college in May 2004
Granted H1B with Employer A in October 2004 while in the US on OPT.
Left US in June 2005 (was going to go back to school)
Came back to US on F1 in August 2005
Was in the US and working on OPT and granted H1B with Employer B in March 2009 on the basis that I was cap exempt and had 5 years remaining on H1B status (received a new I797 in March 2009)
Laid off in June 2009 and left the US
Now have offer from Employer C in the US (currently live outside the US) - can I file a cap exempt application on the basis that I was last in H1B status in June 2009 (i.e. less than 6 years have passed since last in H1B status, with 4 years and 9 months of H1B cycle left) even though I actually only counted against the cap more than 4 years ago in October 2004?

Many thanks for your time!

[raghvi]

I haven't seen a direct response for this as yet, and it's a relatively rare set of circumstances but thought I'd ask the question:

Graduated college in May 2004
Granted H1B with Employer A in October 2004 while in the US on OPT.
Left US in June 2005 (was going to go back to school)
Came back to US on F1 in August 2005
Was in the US and working on OPT and granted H1B with Employer B in March 2009 on the basis that I was cap exempt and had 5 years remaining on H1B status (received a new I797 in March 2009)
Laid off in June 2009 and left the US
Now have offer from Employer C in the US (currently live outside the US) - can I file a cap exempt application on the basis that I was last in H1B status in June 2009 (i.e. less than 6 years have passed since last in H1B status, with 4 years and 9 months of H1B cycle left) even though I actually only counted against the cap more than 4 years ago in October 2004?

Many thanks for your time!

You would be cap exempt 6 Years from last held valid H1 status. So if you have a valid pay stub for June 2009, you would be cap exempt til June 2015.

This is my opinion not legal advice.

[daj857]

thanks!

You would be cap exempt 6 Years from last held valid H1 status. So if you have a valid pay stub for June 2009, you would be cap exempt til June 2015.

This is my opinion not legal advice.

Thanks Raghvi! I'll be speaking to employer's immigration attorney in the next couple of days and I'll update the board on what I hear back so that others may find this useful in the future.