The demand for H1B visas in the US continues to be at its peak with the H1B lottery in the last few years. USCIS introduced 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 the details of old Rule that said the 6 years limit and new clarification by USCIS as per Jan 2017 memo with official references.
Background: H1B 6 years Limit
In general, you can work in the US on H1B up to 6 years. USCIS usually gives H1B for 3 years and then you can apply for H1B extension to get 3 more years. The general rule is that, if you not used up any of that 6 years on H1B, you can apply for H1B transfer or extension as cap exempt (not applying in H1B lottery again) to use that 6 years limit.
Also, your time towards that 6 years limit on H1B is counted only if you are in the US and worked on H1B visa status. Just getting H1B approval does not count towards using of the 6 years…this is for cases, when you are outside of US and have not traveled to US.
Previous Rule before Jan 2017 – H1B remainder time recapture
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
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
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.
Current rule to Recapture H1B Unused time
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.
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.
Below image is from same Federal Register rule that is the actual clarification of the comments by USCIS in the final rule publication.
How to recapture H1B Unused Time, Proofs ?
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 Checklist to recapture unused time of H1B of 6 years
- Copies of Stamps in Passport given at Port of Entry,
- Copies of Stamps in passport related to country where you live
- Arrival Departure Records ( I-94 Cards ) or Electronic I-94 Cards
- Airline Tickets, Boarding Passes
- Chart indicating the times spent outside of US and documentary evidence for the same.
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.
On Dec , 2015, I got my H1b Stamped and I got my H1B approved for 9 months so it expired in September 2016. However, due to unforeseen reasons, I haven’t made my travel to the USA at that time.
And also in between my passport also renewed
Is there any chance to transfer my H1B new employer and get it re-stamp without going for lottery process?
Waiting for you response
H1B Visa Expired on September 2016 Without Traveling
My petition got approved and stamped on Dec 2015 and it was valid till Sep 2016. Due to unforeseen reasons and unfortunately my petition got approved for only 9 months(H1B expired in September 2016) hence I haven’t made my travel to the USA at that time.
I can still see my petition status in USCIS portal using receipt number.
Am I eligible for CAP Exempt without going lottery if any of employer is ready sponsor?
Hi Kumar GM, got h1b visa in 2008 and was there 8 months and it was unused due to rescission did not work anywhere, so came back to India and working in IBM, after seeing your post, I would like to know if am eligible for this or not
I think the above rule explains you can use it any time. You got any official clarification? I got into similar situation
My name is Madhav. I got my H1B approved in 2013 and did not go for stamping. Later, I have shifted to another employer. Hence, 1st employer has revoked my case (Came to know from USCIS website as i have WAC number). Am i eligible now for cap exempt if i wanted to try for H1B?
Pls help. Thanks.
It is slightly grey area. If you have not got stamping, the odds of having the same H1b valid and USCIS accepting the same for transfer is very low. So, you may take a chance with some employer if willing. Check with an attorney as well.
I got H1B approval and valid till 2023 Oct . As there is no project I could not able to go for stamping .
If I could not meet the timeline wil the visa get expired and no use.
Please assist .