I797 validity upon new visa stamping

[tappala]

I was working for 1 and half years in USA for a company and got H1 through that company but could not get it stamped, as I've never left the country. I was previously on an F1 visa.

I went to India last year in Sep2003 and got H1 stamped with the visa being valid till sep 2005.

I had to stay back in India for some family reasons, so never traveled on that H1, instead started working for an Indian company. This company wanted me to go to California, so applied for a B1 visa and got approved. This was in Nov 2003. Now, I am planning to go back to USA on my wife's H4 .
I am planning to start working once I am there.

Should I apply for change of status from H4 to H1 (premium processing to be in time for cap limit ) or can I start working, on my old I797 which is still valid till September 2005. Is the I797 still valid, or has it been superceded by my H4?

 

[Arthur2k]

First of all, forget your old H1B I-797, its no longer valid.
Once you enter on H4 visa you will need to file for a change of status based on your new employer.

 

[tappala]

The latest is I am now in US with an H4 multiple entry stamping.
If I need to file for change of status will I be counted towards the cap.
Is there a work around if my old compnay with which I had previously held H1 is willing to give me a job,will INS consider mycase as already being counted towards the cap?or will they consider me as a fresh H1B applicant as I have stayed outside the country for 13 months.