returned to home country with 12months of unused I797 but expired now. Can new employer file for Cap Exempt ?

[kumar7777]

Hello all at Murthy Law Firm,

Here is my visa history. 

Employer A : 4yrs 3months 
      On L1 Visa :: 2011-May to Sep-2013 
      On H-1B Visa :: Oct-2013 to Aug-2015 (Green card was in process and got I140) 

switched to Employer B on Sep-2015.  During H-1B transfer , got I-797 petition approved till Aug-2018. 
 

Employer B :: 2yrs (GC was in process ) 
But, reisgned & returned to home country(india) in Aug-2017. 

Total stay in US :: 6yr.3months - 3months(vacation) = 6yrs. [ 2y.4m on L1 + 3yr.11m on H1 (3month vacation on H1) ]
Out of US since Aug-2017.(almost 2yrs as of now)

 12 months are NOT used in I-797 and its expired(by Aug-2018) as of writing this (today is 11July2019).

My questions are 

1. Can new employer C apply Cap Exemption petition for me ? 
2. If yes, how many days it takes for approval and for how many months the petition will be issued ? 

Thanks many for your help !! 

[JoeF]

If you haven't used the whole 6 years an employer can file a cap-exempt H1. You would get 6 years minus the time already spent in H1 or L1 status.

From your narrative it seems you have used the full 6 years. So you don't have any time left. The old petition seems to have been approved erroneously for longer than you were eligible.

An employer can file a new H1 for you in the quota in April 2020 for a start date of Oct. 2020.

Edited July 12, 2019 by JoeF