Unused H1B Recapture Rule Article

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

In H1B Visa by KumarUpdated : 27 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 ( 27 )

  1. 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.

  2. 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

      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.

  3. 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

      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..

  4. 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,



    1. administrator

      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.

  5. Kuldeep


    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

      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.

  6. 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

      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.

  7. 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.

  8. 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

      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.

  9. Jigna


    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 ?

  10. 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.

  11. 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

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

  12. 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

      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

          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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