Unused H1B Recapture Rule Article

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

In H1B Visa by KumarUpdated : 183 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 ( 183 )

  1. Raghu V

    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?

    1. administrator
      Kumar

      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.

      1. Teja

        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.

  2. Sekar

    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

  3. Lekha

    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

    1. administrator
      Kumar

      Lekha,
      If you had H1B status, even once, you can use it to recapture the unused anytime…there is no time limit.

  4. Abdulhameed

    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

  5. Raj Bala

    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 ?

    1. administrator
      Kumar

      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.

  6. Raj Bala

    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

    1. administrator
      Kumar

      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…

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