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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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337 Comments

  1. Hello,
    I have a question regarding my H1b validity. My H1b got picket in 2014 and I was officially eligible to work from Oct 2014(until then I was on H4 in US). But, my employer failed to find a job for me, so exited US on Jan 31st 2015 and returned later on H4 Visa. My employer did not pay me from Oct 2014 to Jan 2015, hence no paystubs.
    Can you tell me if my H1b still valid in 2021? I am planning to apply for jobs and want to use H1b issued in 2014 which was never utilized.
    Please Suggest,

    Thanks,
    Vijaya

    Reply
  2. Hi Kumar,

    I worked in the US from 2007 – 2010 on H1B then moved to India in 2010. Can i revive the visa and use the remainder of the 3 years.

    Thanks !

    Reply
  3. Hello,

    Thanks for sharing this info. It is very helpful!

    One question about my case. I was sponsored by company A and got H1b approved from 2020 to 2023. However, since my change of status (COS) was denied, I had to leave the US in 2021 being an F1. Since my H1b was never used, all stamps I have on my passport are F1 stamps.

    I’m planning on going back to the US via H1b in 2022. However, I’m not planning on working for company A anymore. Let’s say I’ll work for a new company B and company B is willing to file H1b for me. My question is, since I never had H1b stamped/used, how will this impact company B to file an H1b for me? Also, do I need any documents from company A to enable this process?

    Thank you!
    Lindsey

    Reply
  4. Hi, My h1b petition was approved in Dec 2020. But my employer is denying to share the approved petition copy or I797. I am not sure if he is willing to go for stamping. Can you please suggest, how it will work if i change my employer? Will it require to have original petition before employer can file new petition?

    Thanks

    Reply
  5. hi,
    My H1 petition was selected in the 2010 lottery and i got my visa stamped. But i never travelled to US till 2017. On 2017, i came to US in L1B visa. Now my L1b is going to expire in a year, Do i have a chance to re-use my 2010 hib under cap exemption ?

    thanks
    Kesavan

    Reply
  6. I had a H1B petition approved from Feb 2012 to May 2013. I got my H1B Visa stamped until May 2013 but have never travelled on that H1B Visa. It has been 8 years since my Visa got expired. Will I be able to use this unused petition and apply for H1B without being subjected to CAP. Please clarify.

    Reply
  7. Hello,

    My petition was picked up in 2016 lottery and was approved from Oct 2016 – Sept 2017.

    I have never traveled to visa neither is my visa stamped even once.

    My Query:

    1. Am i eligible for 6 years ( Until Oct 2022 ) cap exemption ?
    2. Within how many years do I need to travel or get visa stamped from the initial petition approval ?
    3. I read few of your comments and understand that it’s a grey area. So who to approach to get a better clarity ?

    Thanks

    Reply
    • Amit,
      This is grey area as you did not get stamping done. If you had it, there was more chance. Now, you can try to find any employer and try as cap exempt, but it it not clear how USCIS will interpret as they have not done cap exempt consistently for cases like yours.

      Reply
      • Hi Kumar,

        Appreciate your response 🙂 It’s really helpful.

        I have another query. Let’s say my initial petition was approved by Employer A and I switched to Employer B without getting the visa transferred ( since Employer B was a small product company without any presence in the US ), now can Employer C still apply a new cap-exempt petition based on the initial approval notice ( provided by Employer A) .

        Best Regards,
        Amit

        Reply
          • Thank you very much Kumar. Your help is much appreciated.

            Another quick one. What are the documents from the previous approval that I need to provide to a new employer to apply for cap exemption ?
            PS: Never have I stamped visa.

            Best Regards,
            Amit

  8. Hi Kumar,

    *****H1 B Visa stamped but not used*****

    1. I have got the H1 b in 2014 and visa got stamped for 3 years, but not travelled.
    2. then in 2019 I applied for extension and its got approved and again visa got stamped and it expired on 03/31/2020 and this time also not travelled to US due to some problems

    My question here is:
    As my Visa stamped but not travelled to US from 2014, Can I go for extension in cap-exempt now? if Yes, Can I eligible to stay 6 years in US.

    Thanks.

    Reply
  9. Hi Guys,

    I’m in the UK and have an appointment booked for August 2nd 2021 for my H1B interview and stamp entry at the London embassy. This is currently the earliest available appointment due to COVID. My I-129 expires on September 30th 2021. I’m concerned that this short amount of time between these 2 dates is insufficient to move to California and get a social security number issued. I’m unable to get an earlier emergency appointment on a national interest exemption as I have a 3 month notice period at my current job, and wouldn’t be able to leave in the 30 days the emergency exemption provides.

    I’d appreciate anyone advice or feedback.

    Will

    Reply
  10. I got my H1-B Visa in June 2012 and it got expired in May 2013. During this time frame I was not able to travel to US due to some family issues. I haven’t travelled to US on any Visa.

    I need to know if my case falls under recapturing status or not as it has been more that 8 years now.

    Appreciate your help.

    Reply
    • Gaurav,
      Well, if you had it stamped, then you have a shot at it. If not, it is grey area…USCIS may ask regarding the status…if you have an employer willing to give it a try, you should definitely pursue it.

      Reply
      • Hello Kumar,

        Thanks for answering our questions. I am in the same boat as Gaurav. I had got my H1B visa approval in 2013 and got it stamped on my passport in 2014. But due to family issues, could not travel at all till now. Do I qualify to apply for renewal/recapture of my H1B Visa now, considering my new employer is willing to sponsor my visa.

        Reply
  11. Hi,

    Please advise how one request such an extension. Is there a specific form and mail address the documents need to be sent to? Is it possible to send this request online?

    Reply
      • Hi Kumar,
        I have got my h1b approved in feb 2018 till feb 2019. I have got my stamping done and fortunately got the visa stamp with validity till may,2023.
        I did not travel to USA on this visa or any other visa and my petition got expired.
        Since I still have my h1 visa valid,will my h1b petition be considered cap exempt?

        Reply
  12. Hi I was on h1b from 2014-2018 and then left US only to come back in Jan 2020. Do I get another 6 years of h1b till Jan 2026 since I was outside us for more than a year?

    Reply
  13. Hi Kumar,

    I have h1b approval only(no stamping) from 2014-2017. I never traveled to US and so never used H1B.

    Can I recapture H1b in 2021?

    TIA

    Reply
    • Kiran,
      This is grey area. Some had success in transfer, many did not make it. You can give it a shot, if you have a company willing to take the chance.

      Reply
      • How is this grey area? You literally made a post about this topic articulating that the unspent/unused time up to 6 years can be used at ANY TIME in the future. So why can’t this person use their time in 2021? Makes zero sense.

        Reply
        • @kumar: if a person didn’t get stamping but worked on H1b in the US for 2 years, they can use the unused time right. Person converted from H4 to H1B in US itself

          Reply
          • Suvi,
            If they worked on H1B status, then of course yes. The grey area is for transfers without working in US on H1B visa status.

        • zing zang,
          It is a grey area, as the person is not in US and has never worked on H1B status. If someone had H1B status and worked in US, then the entire article applies. But, if someone has not traveled to US on H1B or never got stamping done, then it is grey area.

          Reply
  14. Hello

    I was in US from 2000-2005. I got my last H1b approval in 2004 (valid from June 2004 to June 2007)and came back to India and never been to US on H1B for more than 14 years. My H1B visa was expired in Nov 2006 .

    ( A) Is it possible to apply under cap exempt and recapture the period I was out of US, even though I am out of US for more than 14 years?
    (B) Can I change my previous Employer for filing H1B under the cap exempt ?

    Thanks
    Siva

    Reply
    • Siva,
      If you have worked in US on H1B visa and have not used up all the 6 years on H1B, then you can apply for cap exempt to consume the remaining period.

      Reply
  15. Hi, My H1B petition got approved in 2015, which was valid from 2015 to June 2018.However,it was not stamped and even I have not travelled to USA once.
    My H1B was totally unutilized.

    My question is, is it still valid for CAP-EXEMPT/Extension?.

    Reply
  16. I have a situation that I got through the lottery process for H1B with employer X in 2014 and never got it stamped (Is there any concern with this as I have not got it stamped), the document says that it is valid till 2017 (which is 3 years). I have not done anything with that and now I am planning to move to US with employer Y. Does my earlier H1B Lottery approval of any use or I have to go through and do all the process from the beginning either via H1 or L1.

    Reply
  17. Hi Kumar,

    Thanks for all the great work that you do .I need some help with H1B recapture time.
    Here is my situation .
    My 1st H1B approved Petition was from Oct 2015 to Sep 2018 with Employer A
    My second H1B approved Petition was from Sep 2018 to Aug 2021 with Employer B
    I dont have I140 or PERM approved yet.
    On 1st H1B petition , I used only 6 months of H1B .
    My question is , can I recapture unused H1B time after Aug 2021 , if so , can my employer file for I140 if I’m able to capture the remaining H1B time after Aug 2021.

    Is there a rule that stops from applying for I140 during H1B recapture time.

    Appreciate your help and response.

    Regards,
    Shyam

    Reply
    • SHYAM RAO,
      Yes, you can apply for the recapture until you exhaust the total 6 years of time. There is no such rule that prevents. Anyone can apply for Green Card process, including I-140 anytime.

      Reply
      • Hi folks,

        I am posting this to discuss the status of my H1B and to see what options I have.

        I am nearing my 6 years of H1B on Feb 21st, 2021. My Green Card process started last year but was delayed due to COVID and an RFE on the labour certification. The recruitment phase is complete and my lawyers are in the process of filing my PERM around Dec 10th, 2020. I know that I dont have 365 days PERM application pending for my visa renewal. So my lawyer is about to file recapture time for days that I was outside the country and extend my h1b.

        In 2018, I was outside the country for almost 72 days for consular processing with a change in employer. During this time, I got my visa stamped and got it stamped until Feb 21st, 2021. Which is definitely more than 6 years since my H1B kicked in on Oct 1st, 2014 and 6 yrs got completed on Oct 2020. Note: I have another 2 weeks more weeks that I was outside the country.

        Would I be able to recapture my time in this situation?

        Reply
          • Hi Mithun,

            Please keep us posted. I am on the same boat as yourself. My current Visa is expiring by Jan 31st, 2021 and My H1’s 6 years are complete by Mar 6th 2021 (as I entered USA on Mar 7, 2015). I had been on vacation for 41 days. My PERM will be filed in next week or two as my attorneys are working on it. I am thinking of going out of the country for a month so that I can recapture this ~75 days and help my PERM approval (Hopeful of not getting an audit).

            My question is, how early one has to leave the US border in order for a H1 Cap-exempt post PERM/i-140 approval to apply for an extension?

      • Thanks Kumar.
        Though I was outside the US for the above H1B period , I was still employed and getting US pay. Would it matter , Can I still recapture the H1B time.

        Reply
      • Thanks Kumar.

        One last question in connection to the same query.

        Though I was outside(physically present outside the US) the US for the above H1B period in my first term of H1B , I was still employed by the US employer and getting US pay, Would it matter ? Can I still recapture the H1B time that I was outside the US or is there anything that would prevent me to recapture the H1B time as I was still employed by the US employer and and getting US Pay though I was outside the US ?

        Appreciate your help and response.

        Regards,
        Shyam

        Reply
  18. Hello ,

    I travelled back to India in Jan 2019 and have only 25 days remaining on the h1B stamped visa.Can I file for cap exempt to recapture 25 days and also file perm/I140 from India?

    Reply
  19. Hello
    I got H1b approved in 2006, and remained in US from July 2007 to Nov 2007(Five months)
    and came back to India and never been to US for more than 12 years. My H1B visa was expired in Novenber 2009 and just used the visa for 5 month only.

    ( A) Is it possible to apply under cap exempt even though i am out of US for
    more than 12 years?
    (B) Can I change my previous Employer ?
    Regards

    Reply
  20. Hi Kumar,
    Thanks for all the details.

    I will be reclaiming the unused months of my previous h1b which expired in 2012. However have you come across any cases where the unused time was recaptured successfully after 6 years?

    Reply
      • 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 ,my H1B extension expired on jul 20 2020. Am I eligible for cap exempt through a new company

        Reply
  21. Hi ,
    I have an unused H1B petition valid from 10/2/2006 till 03/31/2009.I have just used 3 months(in 2008-2009) out of the 6 years possible.

    L1B Blanket – I worked in USA ( From 03/2011 till 11/2015)
    L1A blanket – I am working in USA (From 03/2018 – till now)

    My question is due to below rule if require (L1A extension denied or 7 years cap used )can I get a H1B stamping based on my old approved H1B ?Or convert my L1A ( now) to H1B( without going through lottery )

    Reply
    • Somenath,
      You can apply for H1B without going through lottery as you have not used all 6 years of H1B. A company need to apply for New H1B using the previous approval telling that you have not used all of it and you only worked for 3 month, that way you can use rest of remaining time.

      Reply
      • Thanks Kumar .Please also let me know incase in future L1A extension denied ,Can I use the unused H1B to continue job in USA with valid status without leaving USA (while I140 approved ,I485 pending )?

        Can EB1 pending based on L1A will still be valid for H1B status as well for same employer ?

        Reply
        • Somenath,
          The issue with applying after denial is that you will not be able to change of status as your status would be lost. If you want to do it, you should do it before L1A is denied. Talk to your attorney. Yes, you can use the priority date from that and use H1B extensions to continue to stay. Talk to your attorney.

          Reply
          • Hi Kumar ,
            Attorney replied that since in my Case H1B approved first (Stayed only 4 months out of 6 years ) but after that I came on L1B stayed in USA for 4.5 years and then L1A around 2 years of stay as of now so total is more than 6 years .As per attorney I already stayed more than 6 years in H1 + L1 so I need to apply a fresh H1B after one year out of country to set the clock.I am really not sure since you said I can still use my Old H1b to extend the status without a fresh lottery .Can you please tell me a contact whi sucessfully able to use old H1B in similar situation .Need your comment please.

      • Hi Kumar..
        I am in the similar situation..I have used just 3 months from my previous H1B in 2005(employer A).
        I am in the US on L1A (employer B) for the last 5 years..So my question is if my current employer applies cap exempt H1B, am I going to get just 9 months of H1B since I have used 3 months from H1B and have been staying here for the last 5 years on L1A??
        I have an approved eb1 i140.. can I use this L1A i140 to extend my H1B or do I need to file another i140 for H1B??

        Thanks

        Reply
        • Payal,
          Yes, that’s the idea. Yes, you can apply for H1B extensions based on approved I-140, if you move to H1B. Check with your attorney and proceed.

          Reply
  22. Hey there,

    I ahve a question. My initial 6 years H1B expired last year and we filed successfully for time recapture which allows me to continue working here for a while. I had to spend time outside of the us during this recaptured time, can I recapture again ?

    Reply
  23. Hi, I entered US with L1B in July 2014 and left the country by Nov 2018 and reentered US with H1B on Jan 2019. Based on maxout calculation My Visa is ending by End of September 2020. Can I recapture my Visa if I leave the country by mid September (incase I manage to get my i140)?

    Reply
  24. 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 ?

    Reply
  25. Hi, I have i140 approved for more than a year now. Consider this situation – If I return to India and stay there for more than 6 years without returning to India and after 6 years if I decide to apply for H-1B, will I be cap-exempt or need to apply for April cap?

    Reply
  26. I got H1B on 2012 for 3 years and has expired on 2015 without using the visa, the recapture the unused H1B time of 6 years can applicable in my case also? if yes please clarify and also let me know the process.

    Thanks in Advance!

    Reply
    • Ravi Kumar,
      It is a grey area… If you had no stamping, You may or may not be cap exempt. If you had stamping, you may be eligible.

      Reply
      • Hi Kumar,

        Thank you for the response….

        I got my H1B visa stamped in the year 2012 but never traveled to US after my stamping, so can i eligible for Cap exempt in my case? if yes what is the process to get the visa?

        Many thanks!

        Reply
        • Ravi Kumar,
          This is a slightly grey area. As you had stamping, you maybe able to get transfer done Cap Exempt. If you have an employer, you should give it a try.

          Reply
      • Hi Kumar, I also had an approved petition in 2008 with out stamping and never used. Now I am on L1, can I transfer to H1B by recapturing ot? If its Grey area, what is the best way to get that processed? Do you provide attorney services for this?

        Reply
        • kumar,
          There is no best way, the only way is to work with attorney and apply for it. If you have an employer willing to give it a try, just go for it. No, we do not provide any services.

          Reply
    • Anupama,
      You can try to capture it. But, if you do not have visa stamping, you cannot enter US. But, if you are already in US, it should be fine.

      Reply
  27. Hi,
    I was on H1B in US for 1 month in 2013 and came back to India and never been to US for more than 6 years. My H1B visa was expired in 2014 and just used the visa for 1 month only. Is it possible to apply under cap exempt even though i am out of US for more than 6 years???

    Reply
  28. My husbands petition is valid until Jan 2021. And his 6 years on H1B is ending in Oct 2021. If he leaves 6 months before Oct 2021, and then apply for H1B after 3-4 years in future, will he be cap-exempt or he has to go through Lottery. My specific question is that if there is any minimum number of time period required in previous H1B petition which is pending.

    Reply
    • Sulatha,
      He will be cap exempt, but he will only get the remaining 6 months. He needs to go through lottery again, if he does not have I-140 approved.

      Reply
      • There is a rule of cool off period i.e. after a year if you apply for H1B you get back all 6 years if we haven’t exhausted all 6 years. Can you please elaborate on that.

        Reply
        • Sulatha,
          Yes, that rule applies only if you have used up all 6 years. You need to go through lottery again for the new 6 years.

          Reply
  29. Hi,
    Initial Entry in H1B: 1 Jan 2014 – 31 Dec 2016: stayed 6 months outside USA in this period.
    Extension given for 2 years: 1 Jan 2017 – 31 Dec 2018.
    Next extension: 1 Jan 2019 – 30 June 2020 – Got 6 months recaptured.

    Now, If I have traveled outside USA after 1 Jan 2020 for 2 months, can I recapture those 2 months and extend my stay beyond 30 June 2020 in H1B status?

    NOTE: PERM or I-140 not applicable. It’s only H1B extension.

    Reply
  30. Hi Kumar, I missed one entry stamp which is in my new passport for the trip when I went and came back after Visa stamping. Will the stamped Visa during the claimed period serve as a proof of my stay outside USA or I won’t be granted those days as entry stamp was not submitted for that trip?
    Also, can this missed entry stamp page be sent as an additional evidence when my EOS petition is pending for a decision

    Reply
    • Karthik,
      It is not just entry stamp, you can submit your flight tickets or boarding passes or any other proof that you have like stamps that you used to enter your home country to prove that you were outside.

      Reply
  31. Hi,

    Thanks for the article.
    I have one question regarding being H1B cap exempt or not.
    I was in USA on H1-B from 2002 – 2010. I have approved I-140.
    I left USA in 2010, just after I got my 3 years extension beyond the first 6 years.
    Can I apply for H1B cap exempt? Thanks

    Reply
    • SA,
      If you have I-140 approved for more than 6 months ( not withdrawn before 6 months of approval), then you can use that to file as cap exempt.

      Reply
  32. Hi,

    I got my h1 in Jan 2017 while I was in USA in h4(first time h1 with change of status approved) . But at that time due to project ramp down I was laid off and I was not paid. Hence I changed my status back to h4 within the 60 day rule and got my H4 approved. So now I am working on h4 ead and want to convert to h1(which I already have used only for 50 days but no pay slip). So in this case since I was on h1 almost 50 days without payment will it affect my h1 approval.

    Reply
    • Lekha,
      Well, they may ask you for proof of H1B status at that time, if they sense anything wrong…It is hard to say. Check with your attorney on this. Ideally, if you had left the country and come back, it should have been fine, but I am not sure now how it will work as it has been long… Talk to attorney.

      Reply
  33. My name is Kishore, I worked in H1visa from 2012 to 2018. My actual maxout period was OCT 2018. But I left USA In the month of July 2018. Technically 3 months are still there to finish my 6yrs. In this situation if I apply for H1b I will be considered in cap exception? Or My H1b will be considered in Cap and go thru lottery system?

    Reply
  34. Hi,
    I got my H1B visa stamped in the year 2009 but never travelled to US after my stamping. Can you please clarify if I can apply for H1B Cap application this year?
    Thanks,
    Reddy

    Reply
    • Nivaas Reddy,
      This is slightly grey area. As you had stamping done, you may be very likely to be considered cap exempt and may apply for transfer.

      Reply
  35. Hello Kumar

    I have old H1b expired in 2008 and never used. Currently I am on L1 with a different employer and L1 will max out in next 4 months. I-140 EB2 approved.
    Can i use my old H1B never used to file cap exempt L1 to H1 COS. Please confirm

    Reply
      • Thanks. Just to clarify old H1b is stamped. Although visa stamping was delayed as visa officer put it on admin processing and it took more than one year to clear the admin processing and no reason was provided. (Visa appointment in 2006, approved and stamped in 2007)

        Reply
  36. Hi Kumar – Thank you for the article. It is extremely helpful.

    Here’s my question for you:

    I have been on H4 EAD since July 2018 and have been working for a large organization (employer A). In January 2020, I finally got my H1B approval notice (consular processing) with employer A. I still have 2.5 years on my H4 EAD (July 2022), and do not intend to transfer to H1B till then. Say I were to transfer to a smaller organization using my H4 (one that does not hire candidates on H1B), work with them till January 2022, and then move to another large organization (employer B). Will employer B be able to use my H1B approval from employer A to transfer me as a cap-exempt candidate? Please note: I would not have used even a day on H1B.

    Looking forward to hearing from you.

    Leena

    Reply
    • Leena,
      This is a grey area…many a times, they ask for H1B status either by stamping or by working in US for at least a day…There are some cases in the past, that were approved as cap exempt, but in recent times, it is different. As this is grey area, you are better off validating and asking them to apply for H1B and see, if it works…

      Reply
  37. Hello,

    I was on H1B in the US between 2010 – 2011 (6 months). Then went back to India and stayed till 2016 (4.5 years). Then, came back to US using re-capture time and stayed on H1B between 2016 – 2017 (6 months). Then converted from H1B to L1A and stayed from 2017 to 2020 (3 years). Question is, can I now switch back to H1B and recapture the remaining 2 years?

    Reply
      • Thank you,

        My L1A visa and i94 are going to expire in July 2020. If I apply for COS to H1B it can take 7 or 8 months for the approval now and as premium processing is not available. Question is, can I legally continue to work for the time between my L1a expiry date and till COS to H1B is approved?

        Reply
        • Kumar,
          No you cannot work after your I-94 expires or your L1 ends. You can stay in the country. The key reason is you do not have H1B authorized to work and you cannot use L1 as it has expired…

          Reply
  38. Thanks a lot for the article, Kumar!

    Does the ACWIA apply to recapture I-129 petition or does it get waived and the petitioner just needs to pay the USCIS fee of $460?

    Thank you!
    Maya

    Reply
  39. Hi Kumar ,

    I am having H1B visa in cap , valid stamped visa already ended on June 2018.
    Now my husband got his H1B, can i travel to US with my husband on H4 and then see any employer in US who can file H1B in cap for me and then can change H4 to H1B.Pls guide

    Reply
    • shivani,
      You maybe able to do that. It is slightly grey area…Most of the times, if you had stamping, you are considered cap exempt. The rule is that USCIS lately asks for H1B status, which you either get by stamping or working on H1B.

      Reply
  40. Hi,
    This article is really useful. My L1A petition got denied recently few days back. I was in H1B in US from 2nd Nov, 1998 to 30th April, 2003. After that I have traveled to US only in B1 visa. Approx. I stayed in US in H1B for about 4.5 years. Can I reclaim my remaining 1.5 years? Is it too late to claim the remaining years? What happens after 1.5 years? My company also filed i-140 petition at that time. I am not sure of the current status. How do I track it? Thanks a lot for your help.

    Reply
  41. Hi

    Thanks for this article- super helpful!
    I had an H1B approved in late 2011, but I ended up deferring my job offer, and so only got it stamped in Jan 2013, and moved to the US the same month. As the first approval was only valid till late 2014, the employer’s attorney’s filed for an extension in mid-2014, and I got a new stamp that was valid till mid-2017. I left the US at the end of 2014 for personal reasons. I am now looking to move back to the US- and am in the final interview stages for a job in the US, but they are looking for someone to join very soon.

    From the article I understand that I can now use the 4+ years left on my old H1B… thanks for that.

    My questions were
    a) As this would be a H1B ‘transfer’, if premium processing were still open (I understand that its temp shut for coronavirus), my understanding is that I would be able to get the approval within 15 days? and the longer suspension of premium processing for people subject to cap would not apply, right?
    b) From what I’ve read online, in case of H1B transfer, one can start working as soon as H1B petition is submitted- rather than wait for approval. But I assume that’s not the case here given the visa has probably lapsed in some way given it was from some years back (the stamp was valid only till 2017)? Could I start work for them remotely as an employee as soon as petition submitted? Or any other way I can start working for them once petition submitted by them (given H1B transfer allows that)?
    c) I assume that since the stamp in my visa is old, once I have approval I need to schedule an appointment at the consulate to get a new stamp— do you know what the wait times and processing times for Delhi are roughly (before the coronavirus shut down)? Also, to save time, can I schedule the consular appointment in parallel, i.e. if the 15 days end on May 1st, schedule it for May 2nd- or do I need to have some approval number in hand for the appointment booking?
    d) In case USCIS does not re-open premium processing because of Coronavirus, do you know how long the H1B transfer process takes in regular processing?

    Thanks!

    Reply
    • Rani,
      a. yes
      b.No, you are outside of US, that is only possible if you are on H1B and transfering within US, then you can work. Now, you need approval, stamping done to re-enter and then work.
      c. It is hard to say, now everything is closed. Don’t know when they will be open. Check consulate website.
      d. it can take few weeks to few months….There is NO SLA for the general processing.

      Reply
    • I think you can work remotely regardless of H1B. There are tonnes of freelancers working full time jobs as consultants who’ve never stepped foot outside India. It should be possible. There are thousands of remote worker jobs on Stackoverflow as well, so that means people are using it. Probably, you can hold off filing petition until then to avoid any complications of H1B for you or your employer or US taxation. Whenever, premium processing opens, it will take 2 weeks.

      You can take a salary cut (with respect to US/ Bay area salary) to reflect Indian standard of living and costs until eventual H1B happens. Or negotiate equivalent position Indian salary + 25% premium. It can be used as bridge until your final move. It is a win-win for both. Hopefully, they also see value in face-to-face work at site, so your original job offer for US location should stand as well.

      Of course, take opinion from an immigration and tax attorney about above.

      Reply
  42. Hi,

    I got H1 filed in 2001 and stamped as well.
    I also got H1 filed in 2005 but not stamped.
    However, I didn’t travel even once to US.
    Is it possible to recapture the visa?

    Reply
    • Raghu V,
      This is slightly grey area.. If you had stamping done, it may be possible. The only way to know if, if an employer is willing to take the chance and try. talk to an attorney.

      Reply
      • Hi,

        My wife had her initial H1B Approved in Sept 2012. She worked on full time basis until June of 2015.

        Since June 2015 she moved on from H1B to H4 due to family reasons. She has been on H4 since then. Now, she is working on H4 EAD and her employer would like to file for her H1.

        Is it possible to recapture her H1B as she only used 2 and half years of her 6 year H1b validity?

        P.S: She doesn’t have I140 i.e perm filing was not done till date.

        Thanks in advance.

        Reply
        • Hi,

          I haven’t used my H1B which is expiring in September 2020 and plan to get it renewed. I haven’t travelled to the US on this visa. Can I get it renewed? I read that an I94 is needed for renewal so can I apply without that since I havent travelled at all?

          If this case has already been discussed here please let me know where to look

          Thanks
          Shravanthi

          Reply
          • Shravnthi,
            If you have never traveled to US, then your employer need to apply for h1B extension. Discuss with them.

  43. Hi I was in H1b from 2009 to 2013 Jun. Then came back to US on F1 in 2016 and currently in F1 OPT EAD. I have 1.5 years left in my H1B. Can i apply cap exempt to recapture unused time. Or since i was not in H1 status over past 6 years, I cant apply?
    -Sekar

    Reply
  44. Hi,
    I got my h1b approved on Jan 2017 and unfortunately my project ended at that time and I was in grace period of 60 days until March 2017. Within that period I filed for my h4 and got my receipt notice for h4 by mid March. Now my doubt is since I am on h4 in USA itself, is there any time period within which I should convert to h1 to be cap emexpt? Or I can recapture my unused h1(5 yrs 10 mnths left) any time even 6 yrs after the initial h1b approval date.
    Thanks in advance

    Reply
  45. Regarding the start date of counting 6 years…. is it the petition date in April or the approval notice date or the change of status date in October?

    Thanks.
    Abdulhameeed

    Reply
  46. Thanks for the response. Yes, I understand I can go for cap exempt as I still have 1 year left. But my question is about filing a new H1B CAP petition this year so that I get a full 6 year again. I have stayed outside of US already during 2016-17 and will that suffice to apply a new H1B cap application this year ?

    Reply
    • Raj,
      No, you will not get full 6 years, you can only use that for the remaining one year. You should start Green Card process and get I-140 approved to get that for more years and continue to stay in US.

      Reply
  47. Hello,
    I was on H1B in the US from 2012 to 2015 (3 years). Then back to India on Jan 2016 and stayed till 2017 (2 years). Then , came back to US using re-capture time and stayed from 2018 to dec 2019 (2 years). Question is 1) Am I eligible to file a new H1B CAP FY20 petition as I have already stayed outside of US for more than 1 year during 2016 to 2017 ? or should the 1 year outside of US be considered from the last departure date which is 2019 DEC (so not eligible) ? Please clarify

    Reply
    • Raj,
      you are cap exempt as you still have 1 year left. You get up to 6 years. The way you count is the time you actually stayed in US…

      Reply
      • I too have the same question. What does this mean “You get up to 6 years.” Is the H1B tesure gets reets or only the time frame outside US gets account for? Please clarify. Thanks in Advance.

        Reply
        • Typo Error. Posting the same..

          I too have the same question. What does this mean “You get up to 6 years.” Is the H1B tenure(6 Yrs) gets resets or time frame remaining is accounted for? Please clarify. Thanks in Advance.

          Reply
          • Dheepu K,
            In general, the overall time duration someone gets H1B is for up to 6 years. They usually give 3 years and then given another 3 years.
            The time you spend in US on H1B is counted for the 6 years.

          • 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 ,my H1B extension expired on jul 20 2020. Am I eligible for cap exempt through a new company ?

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