H1B (5yrs used) -> H4 -> H1

[Prasad77]

Hello,

I have used 5 yrs of H1 visa and then got a denial at the time of extension. So I moved to H4 and came to the US. After a year on H4, I went to India and now trying to apply H1 again. I believe I am eligible for cap-exempt since I didn't complete 6 yrs yet. But I don't have approved I-140 yet. So I am thinking to try for a fresh H1B. I took a break from H1 for over 1 year but I was still in the US. Am I eligible for fresh H1B or it is required to stay physically out of the country for fresh H1B? Please advise.

Regards,

Prasad

[JoeF]

To file in th cap you need to have been abroad for at least a year by the day of filing

[pontevecchio]

In order to get a new 6 year term by going through the cap, you will need to have stayed out of the country for 365 days BEFORE the H1 petition can be filed.