H1 reapplying after expiry of Old H1B(without travel)

[theck_gs]

Hi,

I would like some suggestion on a scenario which i am currently in.Can you please suggest on the below situation.

1) H1-B stamped in 2008 August

2) H1-B expired in 2011 July.

3) Never travelled on H1-B

4) Currently in US on L2 Dependent Visa with EAD

3) Currently applying for H1-B as the new employer is sponsering the same.

What i understood was i can be CAS exempted for this new application since i had already had an H1-B before. But my current employer who is sponsering my visa mentioned that i will come under CAP as i have dont have I94.

Could you please suggest me on this. if i can apply for H1 without going through CAP, is there a USCIS link which i can use as a reference?( i am searching the same but have not found yet).

Any suggestions would be appreciated!

Thanks much