Am I Cap-Exempt for H1B filing ? (Peculiar Case)


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Hi Sir,

I got my first H1B from Employer A in the year 2006 under Cap. After this I had undergone H1B transfers to new employers 3 times. Below is the history of my petitions:-

Petition 1 for Employer A - Oct 2006 to Sep 2009 (Under Cap for 2006) - filed from India

Petition 2 for Employer B - Sep 2008 to Aug 2011 (Non-Cap based on Employer A petition)-filed from India

Petition 3 for Employer C - Aug 2009 to May 2012 (Non-Cap based on Employer B petition)-filed from USA

Petition 4 for Employer D - Jun 2010 to Apr 2013 (Non-Cap based on Employer C petition)-filed from India

I have stayed in USA only for 18 months (out of 6 years) so far between 2006 and till now. Remaining period, I was working in India..

I left USA 3 years back and I am now in India. Now, I got an offer from another Employer E and he was looking to file my H1 petition under Non-Cap based on my recent petition 4 from Employer D. But he has come back saying that I can no more be filed under Non-Cap as my first Cap started in Oct 2006 and a person can be counted as non-Cap for 6 years starting from the first Cap-Count Petition. Is this true ? If so, can my petition be filed only under Cap from here on ?

But, my understanding was that to be counted as Non-Cap, I need to have attained H1 status previously irrespective of when I attained the first Cap-counted petition.

Please provide your inputs and expert comments on whether I am Cap-Exempt.

Thanks in advance,


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