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How to Apply H1B after 6 Years to Recapture Unused Time

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

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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445 Comments

  1. @kumar Hi Kumar, Greetings.

    Need your valuable feedback.
    Company A sponsored a H1B and i have worked in USA for 4 years between 2014 and 2019. In 2018, i have filed an extension and it went RFE and i responded RFE and used 240 days grace period until Jan 2019.. My extension denied and i came back to India within a week time… I have my PERM and I-140 approved .. Now I am no more with Company A… How to recapture my unused 2 years H1B .. where and how to start the recapture process?.. Please guide me on this. Thank you.

    Reply
    • Recapture is the process while applying for h1 in your case. Once you get an employer and job, ask the attorney to apply h1 as cap exempt h1 – claiming the unused h1 period.

      Reply
  2. Hi All GM, I got my h1b visa in 2010 and was there for 3years and returned on 2013 Dec and during 2017 they again did a renewal am thinking for my H1B and was stamped but unfortunately I didn’t got any opening and have to stay back in India, am with same employer since 2008 and till now , is there any chance of using this unused recap H1B , i went into H1B lot system for 3times and not got a chance, after seeing your post, I would like to know if am eligible for this or not, and if there is a way to check this will be helpful..
    Thanks
    Dana
    dhana.u18@gmail.com

    Reply
  3. This is best compilation of H1B recapture of un-used time.

    I have I-797 Approval Notice of action around 15 yrs back however no travel to US happened on H1B. So Can I apply on H1B Exempt transfer even if i have no contact with previous sponsor.

    Eventually I got selected in 2023 Lottery registration in Mar 2023. Now have both options I believe. What option is bettter and faster in processing. Heard in the comments it can be in 1 week for premium processing.

    If I use 2023 fresh cap selection notice now, Is it any possiblity in future to recapture / Add / append old 15+ back I-797 Approval.

    Reply
  4. Hi,

    I got H1B visa on my Indian passport in 1999.

    Unfortunately, because of dotcom crisis in year 2000, I did not go to US at all.
    I would like to work in US now. Is it possible for me to recapture H1B now after so many years?

    Thanks

    Reply
  5. Hi Kumar,

    I have got H1b approved in 2017, but never stamped and traveled(6 years over), now I got selected in H1B lottery again with new filing from my current employer.

    Can we transfer old h1b to my wife, so she can also work in USA?
    she is also in same profession. pls advise.

    its important as she don’t want to loose job and come with me as dependent.

    Reply
    • There is no such thing as transfer h1b to another person. Once you travel to US on h1, for your spouse to work, only option is that your employer needs to initiate GC process for you, and get the i140 approved. Once it is approved, she can apply for work permit (EAD)

      Reply
  6. Hi, I was on H1B from 2014 to 2020. I have around 45 days remaining in the 6 years period of H1B. Am currently in India. Am I eligible to apply for PERM from India.? Can I ask my company to apply for PERM.? Please explain..

    Reply
  7. I am from India. I was approved for H1b in 2008 and I used it till 2011 July.
    no green card process triggered .
    I have a B1/B2 visa approved to travel to the USA.
    In 2023 can we recapture my unused h1 visa?
    Once I am inside is there any chance to recapture my unused H1b
    please advise

    Thank You

    Reply
  8. 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

    Reply
  9. Hi Kumar,

    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?

    Reply
  10. 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
    Thanks
    Shiva

    Reply
  11. Hi Kumar,

    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.

    Reply
    • Madhav,
      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.

      Reply
      • Hi Kumar,
        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 .

        Reply

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