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How to Apply H1B after 6 Years to Recapture Unused Time

The demand for H1B visas in US continue to be at its peak with 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 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

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.

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.

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

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

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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336 Comments

  1. My H1b 6 years got maxed out on september 7th. I have my last i797 until september 7th.
    I came to in India on March 25th.
    Now I am planning to for cap exemption (on premium) for the period that I was out of US i.e 5 months 15 days approx ( march 25th to sept 7th).
    Is there a risk in taking this approach?
    What are the chances of get RFE as there is less than 6 months remaining.

    Reply
  2. Hello Kumar,

    This is extremely useful blog!! I have used only 18 months of my H-1B period and had to return to India due to personal issues. But this was back in 2001 🙂 Currently my employer is willing to apply H-1B for me. Is it possible to apply as cap-exempt? That would be great news for me !! Please clarify.

    Thanks
    Sri

    Reply
    • Sri,
      You should be able to as per the regulation and clarification. If you have a company willing to try it, you should try it. Do let the community know how it goes.

      Reply
  3. Kumar, I have 5 years left on my H1B, and recently received my 485-EAD (GC AOS app processing). If I switch to the GC EAD, and the AOS is denied, can I switch back to / recapture remaining time (5yrs) on my H1B in a cap-exempt manner?

    Reply
  4. Hello

    My h1-visa expired in oct 2011 after two h1 approvals where i used 3 years.can i apply under cap-exempt now?

    Thank you

    Reply
  5. Hi,

    I just want to know if there is any minimum time criteria for recapturing time spent outside US and using that to apply for an extension. For example, if I leave with only 2 weeks left on my H1b max out, will those 2 weeks be sufficient later on to apply for an extension after getting my I-140 approved?Or is it advisable to have at least one month in hand?

    Reply
  6. Hello Kumar,
    In 2015 a US company applied for H1B and my application was selected in H1B lottery but I never joined that company, so that H1B petition was never filed. Instead I move to US on L1. Can my current employer apply a cap exempt petition for me based on that I was selected in 2015 lottery?

    Reply
    • Hi Manish. Iam in similar situation. Had a H1 petition but never travelled on h1 but on L1. Please reply if you found out a solution to it. Thanks

      Reply
  7. Hello Kumar

    I am currently on a B1 Visa issued on 3rd Oct 2012 and expiring on 30th Sep 2022. Currently based in India.

    I had my H1B Visa issued on 9th dec 2010 and expiring on 30th Sep 2013. When they gave the B1 Visa on 3rd Oct 2012, they put a ” cancelled without prejudice stamp” on the H1B visa.

    I have 2 years of Unused time on my H1B. 

    Question :I plan to visit the USA with my B1 visa and find a job. Can I reclaim / recapture the unused H1B ?

    Reply
    • Onkar,
      If you have not used up all your H1B time, someone can apply for H1B to recapture that. Now, entering US on B1 with intent of finding job is not legal as your intent to enter is different. You need to interview and get a job, ask them to apply for transfer before you travel.

      Reply
  8. Hello, Kumar,

    I’m working on H-1B in the U.S. This H-1B is valid from October 2020 – September 2023 (and potentially for another three years, provided that extension is granted). I have been working on this H-1B since October 2020 until now (April 2021), and I will have to go back to my home due to personal reason. So, I have used only 7 months out of the 6-year period for H-1B.

    I may want to return to the U.S. after finding a new employer in 2022 or 2023 at the latest. If I find a new employer willing to sponsor my H-1B, am I cap exempt? And can I claim the remaining 5 years and 5 months?

    Does it matter that my current employer withdraw the current H-1B after I leave the U.S? And does it matter that I have not had any Visa stamping ? (After my H-1B change of status was approved, I never left the U.S. and that’s why I don’t have visa stamping. I have all other things, like I-797A change of status approval and I can prove that I actually worked on H-1B for seven months in the U.S., by presenting pay stubs, W-2 etc)

    Let me know and thank you.

    Reply
    • I have a similar URGENT question. KUMAR IF YOU COULD ANSWER THAT WOULD BE INCREDIBLY HELPFUL!!!!

      My H1B doesn’t become active until Oct 1st 2021, but I need to quit my job and go back to my home very soon after. So I will only be working on my H1B visa for about 1 week. I won’t get a chance to actually get my H1B visa into my passport or get any stamping. Would I still be able to apply to recapture time? Or is 1 week working on my H1B too short?

      Reply
  9. My approved h1b 2009 to 2012 but after working for 6 month I returns to India for Visa stamping and it got denied. Can I still apply H1b with same employer or different employer in cap exempt ?
    @Kumar : please suggest me

    Reply
  10. Hi Kumar,
    Need your expert advise. I have H1B approved petition applied in 2015 (valid from 10-01-2015 to 09-27-2018. I also had stamping but never travel.

    The petition was approved on 3rd June 2015 which will be completing 6 years on 03rd June 2021 so will I still be eligible for Out-of-Cap application and is there a deadline by when it should be applied?

    Reply
  11. Hi Kumar,

    I have urgent query regarding my case as I find an employer to process but he said he is unsure about if we can use my old H1B.

    1. H1B Stamped 08/2007 to 08/2010, never travelled.
    2. L1B Status 2011 to 2013.

    Could you please suggest if my H1B can be consider as cap-exempt and renewed?

    Reply
    • Hello Dheer,

      Good Day !!

      I do have the same query which you mentioned in point#1. In my case my H1B stamped in 2008 and I never travelled. Can we apply now under cap-exempt. Please share if you got any information on this.

      Thank you
      Ramesh

      Reply
  12. Hi ,
    I got H1B approved in 2012 and got expired in 2015 but I never travelled to US till now. Please confirm if I can ask my new employer to transfer and can use 6 years of H1B duration.

    Thanks

    Reply
  13. Hi Kumar,
    My H1 became active on Oct 2014 and 6 years got over in Oct 2020. I have a few around 30 days left due to my time outside the US during this period. Since my H1 6 years were expiring, I applied for H4 and stayed in US during that time. How can I recapture my H1 days? Do I have to leave US to recapture days?
    I was also exploring the option of filing for a fresh H1 cap exempt but do I need to go out of the US for the cool of period?

    Reply

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