Unused H1B Recapture Rule Article

Apply H1B after 6 Years to Recapture unused Time – USCIS Rule

In H1B Visa by KumarUpdated : 64 Comments

The demand for H1B visas in US continue to be at its peak with H1B lottery in the last few years. USCIS is introducing New H1B Registration Rule from FY 2021 season to reduce costs and streamline operations. In this context of high demand for H1Bs, being counted towards H1B cap in the past has become more and more important, if you want to work in US.  In the past, there was a USCIS regulation to recapture unused time that said that you were considered as cap exempt, only if you have filed for H1B in the past 6 years. This changed in 2017 when the new rules and clarification by USCIS came into effect with. We will cover those details of Old Rule that said the 6 years limit and new clarification by USCIS as per Jan 2017 memo with official references.

What was the previous H1B remainder time Recapture Rule before Jan 2017, that said 6 Years limit to apply as cap exempt?

The previous rule to recapture remainder unused time of 6 years of H1B time said that, you were considered cap exempt to recapture unused period of H1B, only if you apply for H1B before 6 years from the original H1B approval date. It was not very clear what happens if you do not file within 6 years.  Below is a reference of the official rule from INA section 214(g)(7) in one of the field guidance memos of USCIS from 2006. See below screenshots. Check Official USCIS 2006 Memo

H1B Recapture 6 Year Rule - Previous Rule before 2017

Below is the screenshot of the actual rule in Immigration and Nationality Act (INA) section 214(g)(7). It is the same that you see in above screenshot, but below is the actual INA source that talks about the regulation. As it was not clear, it was interpreted that you can only apply within 6 years to be eligible for recapturing the unused H1B.  Check Official INA 214(g)(7) Rule

INA - H1B 6 Year Rule for Recapture as Cap Exempt

As this was not fully clear, in late 2016 it was raised in comments as part of the regulation “Retention of Immigrant Workers, Program Improvements for High-Skilled Nonimmigrant Workers”. USCIS clarified the same in their response when the final rule was published for the same and updated the rule.

What is the current rule to apply for H1B to Recapture Unused time as Cap Exempt ?

The rule to recapture unused H1B time of 6 years was updated in 2017 to provide more clarity and it says that “there is no time limitation on recapturing the remainder of the initial 6-year period of H-1B admission under INA 214(g)(4).” What it means is that if anyone has applied for H1B in previous years and counted towards H1B cap, they can re-apply for H1B as cap exempt petition, with USCIS, anytime to recapture their unused initial H1B time that is less than 6 years.  There is no time restriction that they should apply within 6 years from the initial H1B approval time anymore to recapture or use the remainder of H1B unused time.  Below image articulates the same in a timeline using an example.

H1B Recapture Timeline Example to apply after 6 Years

Below is the official rule change screenshot from federal register. Check Official Federal Register Rule . The below image from Federal Register is the summary of the rule change.

Change done to H1B Recapture Rule after 6 years

Below image is from same Federal Register rule that is the actual clarification of the comments by USCIS in the final rule publication.

H1B Recapture Rule interpretation in Comments of the Rule

H1B Recapture Rule to re-apply, Proofs to Submit to avail the same :

As the above final rule was published, it was updated in the standard code of federal regulations of H1B at 8 CFR 214.2(h)(13)(iii)(C) and below screenshot shows the actual text, where it tells that the remaining time can be recaptured in a subsequent H1B petition at anytime. To avail the benefit, it is up to the beneficiary or the H1B holder trying to recapture the time to provide all relevant documentation support the same. Official reference at : 8 CFR 214.2(h)(13)(iii)(C)

Documents Required to Submit as proof to recapture unused time of H1B of 6 years :

H1B Recapture after 6 Years Staying outside of US Rule - Official Rule

What has been your experience on recapturing the remainder of Unused H1B period of 6 years ? Did you go through any such situation ? Share your thoughts and experiences.   

   

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Comments ( 64 )

  1. Neha

    My H1B was from Oct 2014 to August 2017.

    During this period i travelled to USA and stayed for a period of 1 year 8 months from April 2015 to May 2016 and Nov 2016 to June 2017.

    If an employer is willing to file H1B, would it fall under H1B exempt category?

      1. Neha

        Does the renewal petition have to be submitted before April 2020 (considering my previous H1B filing was in April 2014) or can it be renewed post April 2020 (post 6 years – Your post says that it can be, want to confirm).

        1. administrator
          Kumar

          Neha,
          It can be submitted anytime. That’s the whole point of article. Check the references in article and screenshots.

  2. Rohith

    Hi,

    My H1B got approved in October 2013, and I worked till September 2014. I have been on H4 till now. Now if I plan to apply for H1B in coming months, am I CAP exempt?Do .I have to go through lottery?

    thanks.

    1. administrator
      Kumar

      Rohith,
      Yes, you are cap exempt as long as you have not used all 6 years. Your employer is the one who will work with attorney to file it as cap exempt.

  3. marcisco

    Regarding:
    H1B cap exempt ( maybe using recapturing ).

    Case:
    1) From 2010 – 2015 I was on L1B from company A.
    2) In 2013 company B filed for my change of status L1 to H1, which was approved, but I choose to stay with company A, so I moved out of US before H1 change of status starts and moved back in after H1 start date to keep my L1B status.
    3) H1 petition was valid for 2013-2016.
    4) From 2015 – 2017 I was out of US
    5) In 2017 I came back to US on L1 and have been in US since.

    Question:
    1) I was never in US on H1 status, neither got H1 stamped. So can a new employer file H1 with cap exempt using recapture.
    2) If a H1 with cap exempt using recapture can be filed, how many year I would get, 1 or 6 years?

    1. administrator
      Kumar

      1. This is slightly grey area, as you never had H1B status or stamping done, it can be tricky as USCIS may ask for previous H1B status….so, hard to say.
      2. you would get full 6 years. Again, you need to give it a try…if you have employer willing to file, go for it.

  4. JW

    Hello,

    i worked under L1B for 4.5 years, then i successfully transferred to H1B a few months before my L1B expired. my H1B will give me another 1.5 years so the total would be 6 years max.
    My question is, can i recapture the days while i was still under my L1B status along with the new days under H1B status?

    Thank you.

    1. administrator
      Kumar

      JW,
      Yes, you can, but the thing is you will hit 6 years, so you will need to leave the country, if you do not have green card process with I-140 approved or pending for more than a year.

      1. JW

        thanks. yes i’m aware of that.
        but i could still push the 6 years end date slightly further (for a few months) after recapturing the unused days, right?
        Thanks!

  5. Lalitha

    Hi

    I have question: Currently i m on L1A and will max out in Dec2020 and i need to go back to India. If my employer is ready to file I140, What is the current time of processing I140 for L1A and if by chance if my I140 gets approved before DEC2020 can i extend my L1A petition and stay in US. Please guide me as i m totally new to GC process.

    Thanks

    1. Payal

      L1A can’t be extended after the max out date on the basis of approved i140..that simply means you have to leave after 7 years.
      You can file i140 now and if everything goes well you can get your i140 approved within your time frame depending upon the service center.You can go to your home country and wait for a year then come back again on a new L1 or H1b visa and if your priority date is current by that time you can file i485 or simply wait for your priority date to be current.

      1. Lalitha

        Thanks Payal!! Since i have like 8-9 months of time suppose my empployer files i140 and 485 parallely around feb 2020. can i stay in US after l1A petiion maxout that is beyond oct 2020.

        1. Payal

          You can file i140 now but you can’t file i485 until your priority date becomes current.I assume you are planning to file in eb1c category..in this case your priority date is the date when you file your i140…now a days waiting time for eb1 India is 4-5 years at least.
          Approval of i140 greatly depends on the service center processing your case…like Nebraska is taking 5-6 months where as Texas is taking around 10-13 months for eb1c.
          So as I said earlier you have to leave when you reach your max out date even if your i140 gets approved.

  6. SKSINGHAL

    Thanks for sharing this Policy Change. I am on L1A visa in US for 5.5 years and I have only used 2 years of H1B I got in 2002. How can I use the remaining 4 years without leaving US? Can I get my I-140 and then file for recapture of remaining H1B time?

    1. administrator
      Kumar

      SKSINGHAL,
      You can use the H1B, if unused…As you have already been in US for 5.5 years, I am not sure, how it will work as you cannot stay beyond certain point of time, if you do not have green card process started or at certain stage of green card processing. I would suggest you speak to your attorney on this.

  7. Ravi

    Hi I have a question:

    1) My HIB got approved and stamped in India in Jan-2005 and valid till oct 2016 but i never used it.
    2) currently I am on L1A from June2013 to now but i need to return after June 2020 as i will complete my Stay of 7 yrs. My employer did not file any GC , So I have to come back to India.

    Can I use H1B after staying in India for 1 year( outside USA) as ‘CAP-exempt’. I have not changed my employer.

    1. administrator
      Kumar

      Ravi,
      Yes, you maybe able to use it as you have not used H1B…But, it is slightly grey area, if you have not worked on H1B. As you had stamping, it is definitely positive sign, but again it depends on USCIS…Sometimes, they question on H1B status…If you have an employer, you should give it a try for sure.

      1. Ravi

        Thanks Kumar!! Do you have any idea of such cases where H1B got approved and started working in USA. I mean USCIS did not question ‘H1B Status’….. If Approved one can stay 6 years right as it was never used..

  8. AJITH JOSEPH

    Hi… I was working in Singapore and applied for H1B Visa via an employer in 2013. I had an H1B approved in April 2013, gone through Lottery and got in H1B cap 2013. But VISA was not stamped due to missing document from my employer. Then I decided to continue my job in Singapore (basically from India) and never traveled to US . My question is, is it possible for me to find an employer now in 2020 and get H1B visa cap exempt?

    1. administrator
      Kumar

      Ajith,
      This is slightly grey area. There are few instances, where someone was able to get cap exempt H1B transfer approved, but there are also cases where USCIS has questioned that the user never had status. If you have an employer willing to take the chance, then worth a shot.

      1. AJITH JOSEPH

        Thank you for your reply. From your reply, i think it is not impossible. I will give a try anyway.
        May i ask you, do you mean, to find an employer first and then apply for H1B cap exempt?
        What if I try to contact USICS first, indicating my Approved CASE ID to see the chance of H1B can exempt?

        1. AJITH JOSEPH

          One more clarification needed. You said “there are also cases where USCIS has questioned that the user never had status”.

          What you mean, they questioned and rejected H1B cap exempt? Or managed to get through? thank you in advance.

          1. administrator
            Kumar

            meaning, they did not accept it as cap exempt because the user did not had H1B status…this the grey area part…

          1. AJITH JOSEPH

            Yes, I too think its worth trying as there is at least one case for which H1B cap exempt was approved even when H1B user did not had H1B status. Thanks for your replies

          2. administrator
            Kumar

            Ajith,
            Good Luck. There are more than one that I know of…Do update here for community benefit after you tried it.

          3. AJITH JOSEPH

            Sure. Thank you.
            I will update the status after my try.
            I checked my case status in USICS website. It shows the status “The Case was Approved”. I hope this means the case is not withdrawn or not revoked by my previous employer.

  9. John

    Hi,I have an expired h1b visa which was used only for 6 months.Can i transfer it to another company and get the remaining unused years under cap exemption?And do I have to get it re stamped.Also,my frnd has the same case but has a b1 Visa.If he goes to us on b1 Visa and gets the sponser Can he do the transfer in us without coming down to India for stamping and work.

    1. administrator
      Kumar

      John,
      This is slightly a grey area…if you have never been on H1B status, meaning working in US on H1B, then sometimes, they may question the status…as you had stamping done, you would very likely be eligible for cap exempt transfer…. Same thing applies to your friend…they may file a Change of status in US…but, this is not really recommended option…

    2. AJITH JOSEPH

      Sure. Thank you.
      I will update the status after my try.
      I checked my case status in USICS website. It shows the status “The Case was Approved”. I hope this means the case is not withdrawn or not revoked by my previous employer.

  10. Em Li

    Hi Kumar,

    Thank you very much for the article. My case is that I have used all of my original 6 years’ h1b and had another 3 years’ extension as I have an approved I-140. I left US on 7th’s year after using 1 year of extension. Now my pd is current. My question is that whether i can come back to US to a new employer and use the remaining 2 years of h1b extension with cap exempt? Thank you!

  11. Payal

    Hi Kumar,
    My h1b was approved in 2005 and I travelled for 3 months on that h1b and returned to India..then my L1A got approved from company B in 2009 and I traveled for 9 months then moved back to India and again I travelled for 1 year on the same L1A in 2011 then again I moved back to India.

    My company applied a fresh L1A for me in 2015 and I am in US since last 4 years and have an approved i140 in eb1c category..given today’s backlog for eb1 India I was wondering if I can use my previous H1b in the 6th year and get an extension (ac 21)on the basis of approved i140 as L1A can’t exceed 7 years max.

  12. Dhruv

    Hi Kumar, What about grace period? I was laid off and was looking for a job with 60 days grace period. My employer had submitted request to USCIS to revoke my H1B. Does that grace period can be recaptured since I was not working on H1B during that time? IF so, that brings me to my next question. My new employer filed for h1b transfer on 60th day of grace period, i got RFE and that did not resolve for another two months. My new employer would not allow me to start working until RFE was resolved. In total it took 4 months for me to get approved i797A. So, can those 2 months waiting for RFE resolution also be recaptured ?

    1. administrator
      Kumar

      Dhruv,
      I am not sure, if you can recapture that time…the reason is technically you were on H1B and were waiting for H1B approval, so your status was not changed…You can check with your attorney…but, I highly doubt it. Do update here once you speak to an attorney.

  13. Alexander

    I have been in USA in 2003 under H1B and stayed until 2004 when i’ve quit my job and returned home ( for family reasons ). My old visa is stamped “canceled without prejudice”. Can it be recaptured ?

    1. administrator
      Kumar

      Visa stamp cancellation is different from the H1B petition related time that is talked here….You can claim it. The one you got is from State Department as you got another visa, has nothing to do with your 6 years time of H1B..

  14. Shan

    I read somewhere in 2016 (Before this 2017 rule’s release), that after more that 1 year of exit from US and < 6 year from exit date, one has option to apply using either route : Cap-exempt with recapture or apply afresh for new H1B.

    Can you apply for a new H1B regardless of cap-exempt time available ? In case the lottery goes through, I see an advantage of 6 years H1B block which gives good flexibility in changing employers, etc , especially if I-140/green card LCA hasn't been filed.

    Does applying for lottery, "delete" the validity of past H1B ? If it doesn't, in my opinion, it always makes sense to apply for lottery, especially if the employer can wait till Oct start date.

    Please let me know,

    Thanks

    Shan

    1. administrator
      Kumar

      Shan,
      No, it will not delete the past validity, it just gives you the additional 6 years, if you stay out of US. Frankly, there is no official documentation on the scenario of Lottery and the previous one not consumed….so hard to say….Check with an attorney, if you plan to pursue this route.

  15. Kuldeep

    Hi

    I have been granted H1B in Mar 2011 and I traveled USA couple of times. I have used only (in Total I was in US for 1.5 years that’s 4.5 years is till remaining)

    My Last H1 (Amendment) petition was filed on Sep 2014. Petition was approved (Expiry Date: Sep 2015) however, I came back India and could not go to stamping.

    Since Dec 2014 I am in India.

    Am I still eligible to file the H1B under cap exempt. What will be the year till which, I will be able to file under cap exempt.

    Some folks are saying Sep 2019 is last, as there is 6 years clock on cap exempt status beyond that you can-not file under cap exempt.

    But reading your posts, I feel there is no 6 years limit and I can still file under cap exempt status after 2019 and reclaim the remainder 4.5 years.

    Am I right or wrong?

    1. administrator
      Kumar

      Kuldeep,
      Yes, you are eligible for cap exempt to use the remaining of your H1B time. No, that 6 year rule does not apply, that’s the whole point of the article. Check the official references as well and screenshots that I have put in the article.

  16. Shalini

    But the limitation on the number of years of admission is still the same right? What I mean is, if I have worked here for full 6yrs(5yrs on L1 and 1yr on H1) and have not been out of the country, I am not allowed to claim the remainder time because I have not been out of the country? Even though I have 5yrs remainder time on H1, I will still be counted in the 6yrs limitation, unless I stay out of the country for 1year and reapply after that?
    Although the rule only states the below.
    (D) The period of authorized admission for-

    (i) a nonimmigrant admitted to render services in a managerial or executive capacity under section 1101(a)(15)(L) of this title shall not exceed 7 years, or

    (ii) a nonimmigrant admitted to render services in a capacity that involves specialized knowledge under section 1101(a)(15)(L) of this title shall not exceed 5 years.

    1. administrator
      Kumar

      Yes, the limitation in staying in country does not change. The above article is only for recapturing unused H1B time. You can discuss with your attorney on your situation on how to handle and share your feedback with community here for everyone benefit.

  17. Vinod Kumar

    Hi Kumar,
    I had successful visa stamping done on september 2007, but never traveled to US. Will i be able to recapture my unused H1B visa time in US ? Will i be able eligible for cap exemption now ?
    Please let me know, recenlty if any users had succeeded in doing so . Thank you very much.

  18. Rakesh khanna

    Hi, this recapture rule still applies in case of termination/revocation of h1b status by employer? I got my visa stamped in october2016 and traveled to US in december2016. After 1 year, came back to India in december2017. If my employer terminate my h1b visa in 2018 after i collected the service letter and relieving letter, am i still comes under cap exempt for the remaining unused 5 years? (Probably, if i want to move back to US in 2020 or later thru another employer?). Please respond.

    1. administrator
      Kumar

      Employer cannot revoke, only USCIS can. They only withdraw. If you were terminated as well, it does not stop you from being cap exempt. You are cap exempt, if you had h1B status, you can recapture your unused time by doing H1B transfer.

  19. Jigna

    Hello,

    I had an H1B from 2005 until 2008 and still have 3 years of this H1B that I have not used. I currently live in the Netherlands and am actively looking for opportunities in the US – I am not in the IT / technology / business background. Will I be able to use the 3 years remaining on my H1B if I am able to find a suitable position in the US.

      1. Jigna

        So I still need a sponsor but I will not go into the cap etc – which means if I get a job and a company willing to sponsor the visa I should be able to work immediately ?

  20. Devi

    Hi, I got my H1B stamped in 2013 and was working on it until 2015. I changed status to H4 EAD then after. So as per this rule, am not restricted to recapture my H1B by this year – 2019 and can apply for recapturing it any time in future. Is my understanding right? Please confirm.

  21. Vamshi

    Hi, I have questions, My father has used 4 years and 3 months of his H1B from Dec 1998 to April 2004, he had returned to India in March 2003, he has unused H1B left in the 6 years, is it possible that he can reuse his Visa to return back to US now I’m 2019. Or he has to go through cap again ? Please let me know thanks

    1. administrator
      Kumar

      He should able to recapture it as per the ruling and clarification given above, if all 6 years is not fully done.

  22. John

    Can this rule applicable if we never travel to USA? I am from India, My H1B visa expired on Sept 2016 without traveling there. Am I eligible for cap exception after 6 years?

    1. administrator
      Kumar

      That is slightly tricky and grey area…There have been some successes and some did not work out as well…You can definitely give it a try…recently one of the users updated that it worked out for them… USCIS sometimes question, the user never had H1B status, so not counted towards cap, if there was no stamping done…not very consistent

      1. Rakesh Singh

        Hi Kumar,
        I had successful visa stamping but never traveled. Does that rule of filing any time (not bound by 6 years) holds true in my case also?

        1. administrator
          Kumar

          Technically, you were counted towards cap as you got h1B stamping done. But, it is slightly grey area, sometimes USCIS questions it…if you have an option to transfer, you should give it a try.

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