Unused H1B Recapture Rule Article

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

In H1B Visa by KumarUpdated : 260 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 ( 260 )

  1. Prashanth

    Hello,
    I have a question regarding H1b validity time. My wife received her approved H1b petition for first time in 2014. As per the petition, she is eligible to work in USA from Oct 1st 2014 on wards. until that point she was on H4 visa.But due to some personal reasons,she never worked in USA and went to india in Feb 2015.From Oct 2014 to Jan 2015 she is on H1B without any job.so, no pay stubs. She returned to USA in 2015 on H4 visa.
    Now, she want’s to utilize her H1b as we are assuming it will expire on Oct 1st 2020 due to 6 years completion. is that true?
    if she finds a job now and wants to apply for new H1b petition, does USCIS need her previous pay stubs? (She don’t have any pay stubs as she never worked in USA).
    Any other suggestions are much appreciated.

    Thanks,
    Prahanth

    1. administrator
      Kumar

      Prashanth,
      If she had H1B status, then she is counted towards cap and can apply as cap exempt. Now, not working and getting paid is violation of status, which is a different thing…It may or may not have impact on the next H1B approval, depending on how long you were not employed. I suggest you speak to an attorney on the impact of not having status before you proceed.

      1. Prashanth

        Thanks for your prompt response. She never worked and never got paid. She exited country in Feb 2015 and reentered on H4 status. As you mentioned, i will try to contact an attorney.

    2. Rohan

      Hi,
      I had my H1B from 2005 to 2009 [4 years utilized staying in US] and upon leaving my firm my employer had a stamp on my visa stating ‘Cancelled without Prejudice’. Now in 2020 I am in US on an L1A. Can recapture my 2 years of H1B by finding an employer here in US where I can get a transfer to. Would I be cap exempted ? .. Second question is that between 2005 and 2009, I was not married and now I have dependents so if I am able to recapture, would my dependants get new H4 visa with the same 2 years ?

  2. Rajesh

    Kumar,

    I have bit confusion on this line “if the petition Expiry date (of your previous company) is within 6 years” please clear me on this.

    1. administrator
      Kumar

      Rajesh,
      This is what I said, that was old rule, it was clarified later. The article talks about the same, read again.

  3. Rajesh

    Hi Kumar,

    Always thanks for your pro-active replies.

    I spoke to my current employer regarding my H1B situation and they responded this.

    “Thank you for writing to and Yes, if the petition Expiry date (of your previous company) is within 6 years and if you have the copy of the H-1B approval then we can file the H-1B Transfer if you have time left (among 6 years) on H1B. We have to file the transfer application. If you meet the criteria please raise a request in our portal and select H-1B Transfer Overseas Outside USA, H1B transfer offshore.”

    So this means they are ready to transfer my H1b from previous organization and file it as cap exempt and am I still eligible for the same.? My H1B extension approval already expired in 14/02/2020.

      1. Abdulhameed

        So, Kumar, is it considered H1 Transfer? …. as I have similar situation, when I speak to the recruiters, will I tell them “I need H1 transfer”? is it considered new filing or new petition?

        1. administrator
          Kumar

          Transfer is nothing but a new petition using the previous cap subject petition approval…You can say transfer.

    1. Sdn

      Need clarification on the below queries:

      My H1 to B2 COS filled on 03/04/2020 decision is still pending but this month-end 180 days going to end. In this case, B2 extension is recommendable, or can I change my status to H4 dependent?

      To file H4/B2 Extension do I need to wait until my B2 decision made or I can file it now.

      My I94 expired on 03/10/2020 before that b2 was filled (approval pending) How many days to stay in the USA legally after my I94 expires?

      Noted that my H1b max out on 03/10/2020 but I have 30 days vacation leave to recapture in 6yr H1B Quota. As well my PERM approved(applied on 03/04/2020) and yet to submit the I-140. Can I eligible for H1B Extension, with I-140 receipt # without approval?

      Whats is all the possibility to stay back in the USA legally without leave for home country in the pandemic with a 6-month baby. Please suggest.

      1. administrator
        Kumar

        Sdn,
        You do not have a status to do COS now. So, you should continue with B2 extension. Ideally, you should leave the country immediately and come back on the relevant h4 visa.
        You should file it before 180 days, you need to give credible reason for not leaving US.
        Well, the possibility is tricky as you are already in US without full legal status as B2 is still pending. You need to put in really credible evidence and extreme hardship to get approval and be safe. if you are not sure, go to an attorney and work with them.

  4. Abdulhameed

    Truly appreciated Kumar, useful article and valued information. Here’s my situation along with my question:
    My Timeline:

    -Employer made H1 petition in 04/2014
    -Status change to H1 in 10/2014
    -Lay off in 09/2016
    -Get B2 visa (to make my presence lawful)… (is it considered extension?)
    -B2 visa expired on 15 March 2017
    -I overstayed 179 days
    -I left US on 10 September 2017 (before reaching 180 days… to avoid the 3\10 bars ban)

    My main question is:
    If I found opportunity with H1 sponsorship now, what are my chances? and am I cap exempted? and if I am cap exempted, can I recapture 6 years because of timer reset (I stayed outside US more than 1 year)?

    1. administrator
      Kumar

      You are cap exempt. But, why would you overstay knowingly ? Discuss with an attorney and handle it. You need to be careful, when you enter at Port of Entry, if they ask you need to have clear answer…

      1. Abdulhameed

        I overstayed with misunderstanding that if I stayed less than 180 days, I will not face 3 years ban …. Actually, I tried to get F1 visa few months ago and I was rejected twice last time was due to the overstay.

        Do you think that the dual intent nature of the H1 visa can give me good chance?

        1. administrator
          Kumar

          You were not issued visa because your violated status knowingly…Overstay due to health issues or any unavoidable situations maybe ignored but your case has no excuses..I have no idea, if there will be better chances…

      2. Abdulhameed

        Am I cap exempted even my H1 was revoked?…. should I tell the new employer to apply for new H1B and USCIS will automatically recapture my unused H1 period? Or the employer must apply as “H1 Transfer” to benefit from the exemption?

        1. administrator
          Kumar

          Employer cannot revoke, they can only withdraw…unless, it was revoked for fraud. They usually apply as transfer with cap exempt option.

      3. Abdulhameed

        With reference to my case and regarding the amount of time I’m allowed to recapture… as you see I had after lay off:
        1- Extension for 4 months as B2.
        Then:
        2- Overstay for 6 months.

        will any of the above periods decrease the amount of time I can recapture?

        Much thanks.

  5. Raj

    Hi,

    I returned to India after finishing my L1B in April 2019. Am I eligible to apply for H1B FY 2021 which starts in April 2020. Is there any limitations like I have not yet completed 1 yr.

  6. Sumesh

    Hi Kumar,

    I traveled to USA on L1B Blanket visa from company A from September 2014 till February 2018. My total time spent in USA was around 2yrs 11 months and my visa expired in Sept 2017
    After my return to India in April 2018 company B filed my H1B visa which got approved in June 2019 and I got it stamped in July 2019. MY H1B visa is valid till August 2021.
    Due to some personal reasons I did not travel on H1B visa and kept working for company A. Now Company A wants me to apply for blanket L1B visa again for an assignment for 2 years.

    1. What will happen to my stamped H1B visa if
    a. My L1B visa is approved. Can I have both the visa stamps in my passport
    b. My L1B visa is rejected. Will that have any impact on H1B stamp

    2. If my L1B Visa is approved will it be counted as a fresh L1B visa and can be used for 5 years or it will be only for 3 years 1 Month as I spent 2 yrs
    11 months earlier

    3. If my L1B visa is approved and I travel to US on L1B. Can I change the status to H1B and work for company B or can transfer my H1B visa to any other company. If yes, then for what duration my H1B would be valid will it be valid for 6 years or 3 years 1 month.

    Looking forward for your reply. Thanks in Advance!!!

    1. administrator
      Kumar

      Sumesh,
      Usually, they do not keep both the visa stamps, most of the times the Consular officer put a stamp ‘cancelled without prejudice’ on it..hard to say..If they cancel it, you cannot use it.
      If you have stayed out of US for 1 years, you can stay all 5 years.
      The COS from L1 to H1B is slightly grey area, you maybe cap exempt as you had H1B stamping at least once…

  7. Rajesh

    Hi Kumar,

    Company B who is sponsoring my H1B did not share the receipt so far. Apart from it they have mentioned in their policy that “WE SHARE ONLY APPROVALS”. I am not sure even they have really filed it or not? My profile was shared from one of the consulting firm in Hyderabad. However they have not asked for the Visa fee but asked to provide the Expert Opinion letter which cost me around 675 USD. Last time I mailed them they replied and told me that wait is the only option left.
    Please advise…..

    1. administrator
      Kumar

      Rajesh,
      It is what it is, there is either trust or no trust between your employer and you…Some IT bodyshop companies keep everything under covers…so, hard to know…The only way to know is to continue to ask them and get details…

  8. kiran

    Hi Kumar

    Currently I m on L1A in US and will be maxing out in Oct 2020 and I have H1B stamped in 2006 but never utilized, and i have the approved petition with me ,Can this be Cap exempted? Also Can i do change of status to H1B in Oct 2020 and stay here or i need to leave india and then apply for change of status, if that is the case Can i initiate the COS process at any time like aroud Dec 2020? Pls guide me

    Thanks

    1. administrator
      Kumar

      Kiran,
      Well, this is slightly grey area, it maybe possible. If you have H1B stamped, it is very likely that you can file as cap exempt, but it is up to USCIS discretion though…You maybe able to apply as COS and apply for it. But, the max out period is still 6 years for H1B, they will add your L1 time on it too. Talk to an attorney.

      1. kiran

        Hi Kumar

        I have I140 approved through L1A. Can i use I140 for my H1B extension from 2020 as mentioned in the previous thread. I m not sure whether we can use I140 approved from L1A to extend H1B?

        In that worst case if i go back to India, can i immediate start my H1B extension around Dec 2020 as i have not changed my employer…

        1. administrator
          Kumar

          kiran,
          In general, you need at least H1B once to be able to extend using the approved I-140. Check with an attorney as it is slightly grey area.

  9. Sekhar

    Hi Kumar

    My L1A is getting Max out in Nov 2020. Can i Apply H1B in lottery this April and if selected can i continue working on H1B from Nov 2020 with out leaving US?? Please guide me

    1. administrator
      Kumar

      Sekar,
      How many years ? It is usually 6 years for H1B combined with previous L1 duration…So, you need to be calculate based on that…Talk to an attorney on this and start your green card process soon.

  10. Rajesh

    Hello Kumar,
    Need your expert advise on the below.

    I got H1B in 2014 from company A. I went US and worked for 3 years. After that I came back to India. My H1B got extended till 2020 in US But not Stamped. After that I couldn’t find an another opportunity. I left Organization A. One of the company sponsoring my H1B extension as cap exempt. But it’s more than 7 months, I didn’t hear from USCIS Yet. Apart from it my H1B extension expired on Feb 14 2020. So can I still keep hope for approval?

    1. administrator
      Kumar

      Rajesh,
      Yes, it can take time, if you applied in normal processing. Talk to your employer and get it upgraded to premium, so that you get decision soon and move on with life, rather than waiting forever.

      1. Rajesh

        Thanks Kumar to write back. Yes will check with my employer. Currently I am in India and employer is based in US. They have given me offer too.

  11. SA

    Here is my situation
    If I continue to stay in US until Feb 2021 then I will exhaust my full 6 years of H1B (with no recapture time left). Since, there is no perm filed or I-140 has been filed for me, I am planning to apply for new H1/L1 after staying out of country for>= 365 days to reset the counter.

    What will happen if I leave country now ( which gives me approx 11 months recapture time) and stay out of US for minimum 365 days and apply for new L1/H1 , Will I still get my counter reset and will be eligible to get full term on my new L1/H1 ( which I believe should be 6 years again)? or I will get only 11 months recapture time left in my old petition?

    Could you please help me with this?

    1. Shan

      I’ll let admins answer specifically.

      As another input, I was in similar boat before 2017 memo rule change when I left US in 2016. The idea was to reactivate remaining time on cap-exempt US H1B again between 1 to 6 years expiration timer or file a new H1B (> 1 yr makes me eligible for fresh case as well). The general consensus from free lawyer’s guidance was I can choose any, it is grey area and edge case. Have been asked to consult immigration attorney.

      The bigger question from my side was – if there is cap exempt older H1B Case “A”, does merely applying for fresh H1B Case “B” lottery, delete/invalidate Case A ? The reason is – there is only 1/3rd to 1/6th chance of getting H1B in lottery. So, in Case B doesn’t get selected in lottery, would it delete Case A as well ? I haven’t received good answer to that. I’d still like to know about it.

      It is the bird in hand being lot more worth than 2 in the bush situation 🙁 . But everyone does want those 2 birds 🙂 , or 6 birds in this case.

      **My opinion** : I’d say, you should file 140 by some legal way, if possible right away. Get to labor’s 1yr extension point asap. Then use the usual post-140 unlimited 3yr extensions rather than playing a risky game of lottery in case staying in US for long is critical for you and your career.

    2. administrator
      Kumar

      SA,
      No, you it will not reset…Your H1B will only be given for remainder of time, after that you would need I-140 approval… You can double check with an attorney on this as well.

      1. SA

        Thanks Kumar! Not sure if I understand it correctly but seems I have to complete full 6 years in US land and 1 year
        outside, then only I will be eligible to get full validity of another 6 years on my new L1/H1. Is it correct understanding?

        1. administrator
          Kumar

          SA,
          Yes, for the second term of 6 years after 1 year gap, you need to apply for H1B again in lottery, if you do not have I-140 approved.

  12. Santosh

    Hello Kumar,

    I have worked in 2003/05 on H1b and returned back to India in 2005. Post i worked in another country and never used or extended my H1b. Now its almost more than 14 years, can this H1b can be recaptured under out of cap (Cap exempt) for remaining H1b period as per the article here.

    1. administrator
      Kumar

      Santosh,
      Yes, you can file it as cap exempt, if you ever had H1B status once and not used all 6 years. There is no time limit to use that.

      1. Santosh

        Kumar,

        Since in 2003 when my petition was first approved and as per the article it says “What it means is that if anyone has applied for H1B in previous years and counted towards H1B cap”. In 2003 there was no lottery i.e. My petition was not counted towards H1b CAP. Do you still feel I am eligible for filling my old H1b petition under cap exempt.

        1. administrator
          Kumar

          Santosh,
          If you had H1B once, even without lottery, then you are counted towards cap. So, you are cap exempt.

  13. Alok123

    Here is my situation:
    I am in my 8th year of H1b
    My current I-94 expired in Jan 2020.
    I have a pending H1B extension (I-129) filed for recapture time which is valid until May 2020.
    And, in the meantime I have received approved I-140.

    Questions:
    1. Can another H-1B extension be filed with approved I-140 before decision of pending I-129?
    2. Can approved I-140 be interfiled into pending I-129 and visa be requested for 3 years? (Amend existing application)
    3. Do I need to wait for H1B decision to file new H1B based on I140 approval?

    1. administrator
      Kumar

      Alok123,
      If you have I-140 approved, you can apply for H1B transfer or extension, it does not matter.
      You may file amendment, but it does not matter as you have I-140 approve.
      No, you can just file using your I-140.
      All of these, you need to discuss with attorney as things may vary by your case and then take a decision. I am not sure about the 8th year, without I-140 approval…

  14. Jhansi

    Hi,

    I was on H1-B from 2010 until 2013, and then moved to H4. I have been on H4 since then.
    Am I still cap exempt since I havent used up my 6yrs of H1B? Can I use my remaining H1B now under cap exemption even though I havent been on H1B status for the past 6 yrs?

  15. Shruthi

    Hi,
    My h1b visa stamped on june 2012 and I travelled to US and was there till June 2014. I have used only 2 years of my h1b. Now my employer is ready to file cap exempt and wants me to check if I am eligible for cap exempt. Could you plz clarify?

  16. Jenice

    Hello Sir,

    Thanks for your advice. Appreciate your effort

    My h1b was from dec2008 to dec2014. I worked on h1b till mid 2013, I still have 1.5 year left on h1b.
    My passport is stamped 2 times for h1b and got approved. My question is that its almost 6 years that I have left H1b can I still recapture my unused time.
    I have a doubt because someone said that you cant recapture the time if you complete 6 years from the last date you were on h1b. in my case it was May 2013 I was last on H1b, so can i still claim it ?
    Note 1 : I had approved i 140 also but that was withdrwarn by employer in 2013.
    Note 2 : I was on H4 from 2014 to 2018.

    Now i want to go back to H1b. Thanks

    1. administrator
      Kumar

      Jenice,
      Yes, you can. Yes, the 6 year rule was old. You can read the same that I mentioned in the article as well… Yes, you can claim it.

  17. Rajesh

    Hi, Need advice here..
    H1b was approved in Jan 2013 and I worked until dec 2013(1 year) then travel back to india and came back to us in 2016 so I was out of us for 2 years and I am still working here since 2016 Jan (4 years) . I hv filed extension in sept 2019. I m not sure if last application Was needed to go under re capture catagory or normal extension. My attorney did not mention anything about recapture and we hv submitted normal documents as we do for extension. Is there any problem?

      1. Rajesh

        Thanks kumar so when does the recapture required ? Does it mean If you stay out side of us for long time and would like to use your unused stay Then one can use recapture? Thanks !

        1. administrator
          Kumar

          Yes, that’s the concept…if you stay out for few years and not sure, that’s when people think of re-capture….It used to different in the past…

  18. Madhu

    Hello Kumar,

    I am seeking your advise.

    I had H1B visa stamping in 2007 and expired in 2010 September. I did not use it.
    Now I am willing to work in US again. Do I need file fresh petition for H1B or can use the expired visa to recapture the unused period?

    1. administrator
      Kumar

      Madhu,
      Well, this is slightly grey area….usually, if you had worked on H1B status, then you are definitely cap exempt. Now, with stamping as well, you get status, but sometimes they may question…You can try to find an employer and ask them for H1B transfer as cap exempt…it very likely will be cap exempt as you had it stamped, it is up to USCIS though..

  19. Suresh Pendayala

    Hi Kumar

    Currently i m in L1A and will max out in Oct 2020. my L1A- i140 approved . I have unused H1B approved in 2006 got stamped but never used. 1)Can i use this H1B as cap -exempt petition after oct 2020 by using L1A-I140.. 2) If i have to go with L1A what are my next steps to continue in USA as i heard that i 485 is not current. So what are my options.. Please advise…

    1. administrator
      Kumar

      Suresh,
      You cannot stay beyond the max out time. They count both L1 and H1B time… Talk to an attorney as this is tricky with different visa statuses and options.

      1. Suresh Pendayala

        Thanks Kumar!! what abt the below option

        If i have to go with L1A what are my next steps to continue in USA as i heard that i 485 is not current. So what are my options.. Please advise…

  20. Rakesh Mishra

    Hi Kumar & other experts,

    Need your expert advise. Appreciate all your help!
    I was working in US on H1B between 2006-2012, used almost 6 years from that duration (3 weeks left). Went back to India in early 2013 and worked with different employer until early 2016. Came to US on L1A visa in early 2016 and working in US since then. I have another 3 years left on L1A.
    Can I switch back to H1B if a different employer files my PERM & I-140 and then cap-exempt H1B?

    What are my options if I want to continue working in US after hard limit of 7 yrs of L1A?

    Thank you!

    1. administrator
      Kumar

      Rakesh,
      I am not sure, if you may be able to switch and get extensions as you have very few days left and I dont know how all the dates will play out. Please check with an attorney.

  21. Amit Iyer

    My current maxout on H1B is 4th April 2020. And my I94 is until 14th April 2020.
    I’m awaiting PERM approval and then planning on I140 in premium processing.

    Can I still leave on the 4th April for India and get a cap-exempt extension and return back once I140 is approved or do I need to leave some recapture time for the future extension to be filed?

    Would appreciate your reply Kumar. Thanks!
    Amit

    1. administrator
      Kumar

      Amit,
      Technically, the rule for getting cap exempt H1B extensions is to have I-140 approved. Now, the question is about travel before or after the approval out of country and if it matters…Most of the common cases that I know did not leave US…I have not seen many cases like yours, so frankly I do not know…My two cents is that as per rule, it does not matter, if you are in US or not in US. As long as your I-140 9s approved and you work for the same employer, you should be fine. If asked in stamping you can say that your Green Card process is going on…Please check with your company attorney on this and do update here as well for community benefit.

  22. Ashok RAj V

    I applied for H1B visa in 2016 and got it stamped with a valid period of 2016 Feb till 2019 Dec.
    I did not travel to the US on this visa due to some personal commitments.

    But during the same period I have been to US mutliple times on B1 visa.

    Now I have changed my employer and they are filing a L1A for me , but this is a short travel for 18 months, but now I plan to permanently move to US.

    Since I do have used my Stamped H1B visa, can I still re-apply for H1B cap exempt while working on L1A in US ? and find a new employer later with the H1B status and continue living there ?

    My wife will have to quit her job here to move on L1 along with me, we are weighing the pros and cons before taking up the L1 offer from my current employer.

    Need you inputs and suggestions.

    1. administrator
      Kumar

      Ashok Raj,
      This is slightly grey area….Hard to say, because you had H1B stamping done, you have better chances to file as cap exempt. The only way to know is to ask an employer to file as cap exempt and get approval. As you had it stamped, you have really good chances to get it approved as cap exempt. You can talk an attorney as well or try to talk to few employers now and then validate as well.

  23. Vijai Meda

    Hi,
    My name is Vijai, I have an approved H1B petition in 2010, I neither went to H1B stamping for some reasons known to me. My L1B was rejected in 2012. Can I recapture those 6 years and go with a new employer now in 2020.

    Thanks,
    Vijai

    1. administrator
      Kumar

      Vijai,
      Well, it is slightly grey area… If you have not got stamping, it can be tricky…they may ask for H1B status ( stamping)…If you have an employer willing to take the chance, you can give it a try…

        1. administrator
          Kumar

          Vijai,
          It is not above validity, it is more about the status thing that USCIS may ask. Validity is not relevant, that’s the whole article about, there is no timelimit.

        1. administrator
          Kumar

          Pramod,
          If you have h1B stamped, the chances are much better as you had been given H1b status by Consulate at least once…having said that, it is still a slightly grey area…But, you should definitely pursue as it has much better chances..Do update here too once you pursue anything.

  24. Mahesh

    Hi Kumar,
    Thanks for the details. Based on this, i am eligible for recapturing 8 1/2 months(Total time i was outside USA) of full 6 years of my H1B which expired in July 2012. I never applied for GC that time.

    Can i apply for a cap exempt H1B for 8 1/2 months through a different employer as my old employer shut operations ?

    Asssuming i file for Labor Certification immediately after i come to US on the recaptured H1B time , what are the options for me to stay back in the USA as LC has to be filed at least 365 days before 6 years H1B are over to be eligible for 1 year of h1b extension.

    Thanks in advance.
    Mahesh

    1. administrator
      Kumar

      Mahesh,
      Yes, you can. If you can speed up the process of LC and get I-140 approved in 8.5 months, it is possible. So, careful planning and working with a good attorney would be best approach.

      1. Mahesh

        Hi Kumar,

        Since PERM is future employment, once cap exempt recaptured H1B gets approved, can i start the PERM process in interest of time while i am in India ( i am not physically present in US that time as stamping might take time)

        Does this also mean that i am only eligible for 3 years extension and not 1 year extension once PERM and I140 is approved since PERM will be filed AFTER 365 days before 6 years H1B is over?

        Thanks for all your help
        Mahesh

  25. SubbaReddy

    Hi Kumar,

    I got the H1B approved on 2009 and got stamped on Jan’2010, Traveled to US Nov’2010 and stayed 3 years , Returned back to India on Jan’2014, In between I got extension and stamped. From Jan’2014 I have not traveled and extended the H1B. Could you please confirm am i eligible for H1B Cap exempt for un-used years. (3years).

  26. Siva Sagar

    Hi,

    My H1B got approved in 2012 September and I traveled to US and stayed there for 6 months in 2013 and return back to India. Since then i haven’t traveled to US.

    Am i eligible for Cap Exempt ? if Yes, is my current employer should file the extension or renewal ?

    Please clarify.

    Regards,
    Siva Sagar

    1. administrator
      Kumar

      Siva,
      Yes, you should be eligible for cap exempt H1B. You can ask your current employer for extension or other employer to file transfer too…

  27. Pavan

    Hi

    Currently I m on L1A visa and getting max out in July 2020(completing 7 yrs in USA). Unfortunately my employer did not file GC and i need to go back to India. But the same employer did H1B in 2006 and i got stamped at that time but could not travel to USA. So technically I never used the H1B. As per new recent rule of re-capturing could you please advise whether i can use the H1B , if so when i need to file for change of status .. So please advise.

    1. administrator
      Kumar

      Pavan,
      Even though you have H1B, you will max out on the continuous stay on L1 + H1B, so may not be possible. I would suggest you talk to your attorney and double check on this one…

      1. Pavan

        Ok!! Suppose if I go back to India.. can I be eligible for Cap exempted petition though I never traveled on H1B. If so Can I file the extension of H1B just going to India( Aug 2020 as i will be going to india in July 2020) or do I need to wait for a year or so to file the H1B extension as my employer is the same… Any guidance is really helpful..

        1. administrator
          Kumar

          Pavan,
          Well, to file as cap exempt is slightly grey area, especially for transfers as you never had H1B status …but, it may be cap exempt with same company extension….As I said, this is is grey area and I suggest you speak to your company attorney and get it clarified.

          1. pavan

            Hi Kumar

            Thanks for your reply.. But I have my H1B stamped but never used. Will this be considered for Cap-exempt?

  28. Harshith

    Hi I have H1B visa Stamped in Jan 2005 to oct 2006, but i never travelled to US on H1B. But travelled to US on some other visa like L1B etc… Can Iuse this H1B to recapture unused period now. If that is the case 1) will i be cap-exempt? 2) I have not changed my employer( is same who filed H1B earlier)

    1. administrator
      Kumar

      Harshith,
      For cap exempt, this is slightly grey area…There are many who had success and some failures too to file as cap exempt for transfer. But, as you have done stamping, it is very likely eligible for cap exempt transfer
      If it is same employer, then it is technically an extension for you, so should be fine. check with your attorney and then take it forward. Do update here on how it goes with you .

  29. 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.

  30. 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.

  31. 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.

  32. 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!

  33. 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.

      2. Shivani

        Regarding H1b.
        I worked on h1b visa from 2016 dec to may 2018 filed by company A, then i have to travel back as my extension got rejected.
        Now i want to switch company, my question ia if i switch from a to B, and A (which satrted my h1b ) sends a withdrawal request to USCIS. Can My new employer company B still use my visa and my visa is eligible for cap exempt?

        1. administrator
          Kumar

          Shivani,
          if you ever had H1B approval once and were on H1B status in US, you are eligible for cap exempt. The withdrawal does not take you out of the cap…it is just employer telling that you dont work for them.

          1. Shivani

            Thanks a lot sir , one more thing I don’t understand. Sometimes our company managers says if you will leave the company you will not be able to use your visa as we will put it on hold . Is this even true and what they mean by saying we will put it on hold

          2. administrator
            Kumar

            Shivani,
            That’s just bluff to lock employees…You can confirm with an attorney as well, if needed.

  34. 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.

  35. 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..

  36. 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.

  37. 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.

  38. 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!

  39. 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.

  40. 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.

  41. 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..

  42. 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.

  43. 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.

  44. 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.

  45. 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.

  46. 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.

  47. 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 ?

          1. SP

            Hi Kumar, Based on this article i checked in my Company and they are still of the opinion that to recapture you should try within 6 yrs only. The content of above mentioned federal portal is interpretation that has been floating around for a long time.

          2. administrator
            Kumar

            SP,
            No, this changed in late 2016. You can read the screenshots from actual federal documents before and after in the article, it is very clear. Read the article again. Talk to another attorney.

          3. SP

            Hi Kumar,

            Will you suggest any attorney who has successfully got approval for H1b petition post six years pls? I consulted 2-3 attorney’s and all of them mentioned you cannot recapture beyond six years. Not sure who is best attorney who can deal with such cases.

          4. administrator
            Kumar

            SP,
            Unfortunately, we do not recommend anyone. But, You cannot go wrong with reputed ones like Murthy or Reddy Neuman. Send them the links and screenshots from Federal Register that we have in the article, if they not possible…

  48. 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.

  49. 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.

  50. 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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