H1B Cap-exempt, eligible for new 6yr term - duration of my new H1B visa?


I've completed 5 years, 1 month of my first 6 year H1B visa term and have been outside the US (in India) for 2.5 years now. So, I have another 11 months + 4 x (3 week holidays outside the US)    =    >1 year of term left.


1) Will my new H1B cap-exempt visa applied by old or new employer 
(both may extend an offer to me) be for a 3 year term OR just the time left from my previous 6 year H1B visa i.e. little more than 1 year?

2) If I have to get a full 6 year term, would I have to go through the cap i.e. next year now or is there a way to do it cap-exempt?

3) Incase I will get only 12 months under cap-exempt, will the employer have to file a fresh application under the cap for me after the 12 months are over? Will I have to go outside the US for 1 year in order to be able to be eligible for he fresh application?

....basically I'm trying to figure out what all my potential employer will have to do to get me to work for them long-term.

My case:

- Completed MS in the US in May 2005.

- I completed 5 yrs & 1 month of my 6 year H1B visa term working for an employer in the US (Oct1 2005 - Oct 27, 2010).

- I had an approved I-140 but did not file for AOS as I was planning to return to India to start-up. Priority date was March 2006.

- I returned to India on Nov 1 2010 and started-up.

- Start-up is now in the process of being acquired :) and now I want to return to the US. My old employer as well as couple of new companies may be interested in extending an offer to me.

Thanks in advance!
  1. Either can file cap-exempt H-1 for you. The H-1 can only be for 1 year as your clock will not be reset in case of cap-exempt petition. The employer will have to file for green card process and later ask for 7th year extension.

  2. Go through cap again

  3. To reset the clock

  • employer needs to file a cap-subject petition

  • you should stay outside US for 1 year before the above petition is filed