H1B extention - petition expired in Oct 2007


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Although there are simialr topic on forum, in my case original petition wasissued in oct 2004 which is older than 6 yrs, hence posting this question to know if we can go for extention or apply new H1B with non-cap (using cap from previous H1B petition).


I had H1B visa which I used for onsite assingment. Out of six years of H1B limit, I stayed in US for for 2 yrs 8 months  and returned to india in Aug 2007.  After that I never went to US and never renewed my Visa which expired in Oct 2007.

Question - As per my understading my previous H1B visa petition under which 3 yrs 4 month duration is still valid, can be renewed now. And this renewal is excempt from annual H1B cap.Please confirm?

  1. H1B Petition details
    1. Valid from 10/01/2004 to 10/01/2007
    2. Did not apply later for any extension
  2. H1B Visa Details/Stamped on my passport (time spent on US soil)

  3. 18 Dec 2007 to 18 July 2007

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I have got following response from the department with my employer whcih handle these matters.


"If the petition has been approved  6 years prior and the validity dates being Oct 01, 2004 to Oct 01, 2007 the applicant cannot be eligible to file a Non CAP. This response is in conjunction with the immigration law and memorandum."

Is this correct and latest rule?

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