URG:I am having expired unused H1B, Can I apply the cap exempted H1B now?

USA H1B Visa
1

I had H1B stamped in Sept-2008 and expired in Sept-2011 and I didn’t use it, Can I apply the cap exempted H1B now?

I had a H1B Visa in past which was filed by my previous employer X in Sept-2008 and I got my visa stamped and Valid From: 20-SEP-2008. My H1B got expired on 17-SEP-2011 and I didn't travel to USA on H1B anytime. I [b]never used H1B[/b].
Can I apply a new H1B with reference to my old petition and can it be exempted from Cap now? if yes, until when I can apply and what will be fees and how much time it will take to get approved?Currently I am in USA on L1B visa from 1 Dec 2012 with different employer Y.
2

Well your potential sponsor could use the old petition and file a cap exempt petition (since it is still less than 6 yrs since your last petition was approved)

But I have seen the opinion of many attorneys who say that if you have never travelled on an h1 you cannot use it to file a cap exempt , but there are others who disagree. See what the attorneys of your sponsor say. I believe it might be possible and heard of successful cases.