I had H1b 2007-2010, but never used it, but it is stamped. Can I use now in 2016 to file under cap exempt.

I had H1b 2007-2010, but never used it, but it is stamped. Can I use now in 2016 to file under cap exempt. My employer is saying that CAP exempt is applicable only till 6 years from the existing petition start date. But in some of the other post here, they are saying that I can still file in 2016 under cap exempt. Which one is correct?

http://redbus2us.com/qa/34648/h1b-approved-2007-expired-2010-eligible-for-cap-exempt-2016

USCIS rule is for 6 years, however it looks like USCIS doesn’t enforce that rule strictly based upon attorney’s document submission.

There have been some recent experiences where it was approved for cap-exempt petition even after 6 years have elapsed. In the end, your employer and attorney should be convinced about it and should be able to demonstrate to USCIS to approve the petition even though 6 years have elapsed.