The demand for H1B visas in the US continues to be at its peak, with a continuous H1B lottery every year, over the last 10 years. According to the USCIS H1B data for their FY 2024 annual report, there were 427,091 H1B petitions filed with USCIS, indicating the total H1B holders working in the US. This number tells how many people were counted towards the H1B quota cap and eligible for renewals, extensions, or transfers.
In the past, there was a USCIS regulation to recapture unused time that said that you were considered cap exempt only if you had filed for H1B in the past 6 years. This changed in 2017 when the new rules and clarification by USCIS came into effect.
In this article, we will cover the details of the old Rule that said the 6-year limit and the new clarification by USCIS as per the Jan 2017 memo with official references.
Background: What is the H1B Visa’s six-year limit?
In general, you can work in the US on an H1B up to six years. Initially, USCIS usually gives an H1B for 3 years, and then you can apply for an H1B extension to get three more years. The general rule is that, if you have not used up any of that 6 years on H1B, you can apply for H1B transfer or extension as a cap-exempt (not applying in the H1B lottery again) to use that 6-year limit.
Also, your time towards the 6-year limit on H1B is counted only if you are in the US and working on an H1B visa status. Just getting H1B approval does not count towards the use of the 6 years time. This is primarily for cases when you are outside of the US and have not traveled to the US.
Previous Rule before Jan 2017 – H1B remainder time recapture
The previous rule to recapture the remainder of unused time of 6 years of H1B time said that you were considered cap exempt to recapture the unused period of H1B, only if you applied 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 to the official rule from INA section 214(g)(7) in one of the field guidance memos of USCIS from 2006. See the screenshots below. Check the Official USCIS 2006 Memo
Below is the screenshot of the actual rule in Immigration and Nationality Act (INA) section 214(g)(7). It is the same as what you see in the 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
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.
Recapture H1B Unused Time Rule
The latest 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 the H1B cap, they can reapply for H1B as a 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 the H1B unused time. See the below image articulates the same in a timeline using an example.
Below is the official rule change screenshot from the Federal Register. Check Official Federal Register Rule.
The screenshot below is from the same Federal Register rule, which provides the actual clarification of the comments by USCIS in the final rule publication.
Can you recapture H1B Unused Time? How? What 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 the screenshot below shows the actual text, where it tells that the remaining time can be recaptured in a subsequent H1B petition at any time.
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 the unused time of an H1B for 6 years
- Copies of Stamps in the Passport given at Port of Entry,
- Copies of Stamps in your passport related to the country where you live
- Arrival Departure Records ( I-94 Cards ) or Electronic I-94 Cards
- Airline Tickets, Boarding Passes
- Chart indicating the times spent outside of US and documentary evidence for the same.
Is the Unused H1B Petition Cap Exempt?
To be considered as H1B cap exempt, you must be counted towards the H1B quota cap by either H1B status or H1B visa stamping. If you have applied for H1B as Change of Status, when you were in the US and held H1B status for even a day, you are considered as cap exempt and do not have to go through the lottery.
The second option is, if you were to get an H1B visa stamped at a US Consulate, in this case as well, you are technically considered cap-exempt. There have been some instances where this is a grey area, and some did not get it as a cap exempt. So, this can be slightly tricky and up to the attorney on how they present the case.
What has been your experience in recapturing the remainder of the Unused H1B period of 6 years? Did you go through any such situation? Share your thoughts and experiences.
Dear Sir,
Below is my query.
My H1B visa got stamped in 2011 and worked around 6 months in USA. Then I came back to India due to closure of the project and switched to new company and my employer who processed my H1B visa, sent to withdrawn request to USCIS and it got revoked.
If any employer is ready to provide a Job in USA, can new employer reactivate and utilize the unused time period? or want to go for Fresh H1B filing in that case whether I fall under any cap-exempt category as I did not utilized period of full 6 years.
Hi Kumar,
My employer applied for H1b in April 2018. I got picked up in the lottery . My H1B approval came only on 1/25/2019. However my start date was pre-dated as Sept 12 2018 on I797A. Fast forward, my extension was done on April 2021 and my extension was approved till Sept 12 2024. However now since my PERM is pending and my extension is expiring on Sept 12 2024 can I re-capture or apply an extension for the unused time (between Sept12 2018 and jan 25th 2019)?
Please let me know.
Thanks,
I have spent 6yrs on L1
H1B has a maximum period of 6 years, and this includes any time spent in the U.S. under an L-1 visa. This impacts the duration of the H-1B visa also.
I have spent 6yrs in L-1 and had unused H1 from 2012 and also have EB1c approved in 2023
Can I extend the period of stay above 7yrs by COS from L1 to H1 based on approved EB1c??
Hi Kumar
How much time it may take to get recapture request approval?
@kumar Hi Kumar, Greetings.
Need your valuable feedback.
Company A sponsored a H1B and i have worked in USA for 4 years between 2014 and 2019. In 2018, i have filed an extension and it went RFE and i responded RFE and used 240 days grace period until Jan 2019.. My extension denied and i came back to India within a week time… I have my PERM and I-140 approved .. Now I am no more with Company A… How to recapture my unused 2 years H1B .. where and how to start the recapture process?.. Please guide me on this. Thank you.
Recapture is the process while applying for h1 in your case. Once you get an employer and job, ask the attorney to apply h1 as cap exempt h1 – claiming the unused h1 period.
Hi All GM, I got my h1b visa in 2010 and was there for 3years and returned on 2013 Dec and during 2017 they again did a renewal am thinking for my H1B and was stamped but unfortunately I didn’t got any opening and have to stay back in India, am with same employer since 2008 and till now , is there any chance of using this unused recap H1B , i went into H1B lot system for 3times and not got a chance, after seeing your post, I would like to know if am eligible for this or not, and if there is a way to check this will be helpful..
Thanks
Dana
dhana.u18@gmail.com
Same case is for me as well. can anybody answer on this?
This is best compilation of H1B recapture of un-used time.
I have I-797 Approval Notice of action around 15 yrs back however no travel to US happened on H1B. So Can I apply on H1B Exempt transfer even if i have no contact with previous sponsor.
Eventually I got selected in 2023 Lottery registration in Mar 2023. Now have both options I believe. What option is bettter and faster in processing. Heard in the comments it can be in 1 week for premium processing.
If I use 2023 fresh cap selection notice now, Is it any possiblity in future to recapture / Add / append old 15+ back I-797 Approval.
Hi,
I got H1B visa on my Indian passport in 1999.
Unfortunately, because of dotcom crisis in year 2000, I did not go to US at all.
I would like to work in US now. Is it possible for me to recapture H1B now after so many years?
Thanks
Hi RV
Did you get a response?
Regards
Kishore
Hi Kumar,
I have got H1b approved in 2017, but never stamped and traveled(6 years over), now I got selected in H1B lottery again with new filing from my current employer.
Can we transfer old h1b to my wife, so she can also work in USA?
she is also in same profession. pls advise.
its important as she don’t want to loose job and come with me as dependent.
There is no such thing as transfer h1b to another person. Once you travel to US on h1, for your spouse to work, only option is that your employer needs to initiate GC process for you, and get the i140 approved. Once it is approved, she can apply for work permit (EAD)
Hi, I was on H1B from 2014 to 2020. I have around 45 days remaining in the 6 years period of H1B. Am currently in India. Am I eligible to apply for PERM from India.? Can I ask my company to apply for PERM.? Please explain..
I am from India. I was approved for H1b in 2008 and I used it till 2011 July.
no green card process triggered .
I have a B1/B2 visa approved to travel to the USA.
In 2023 can we recapture my unused h1 visa?
Once I am inside is there any chance to recapture my unused H1b
please advise
Thank You
On Dec , 2015, I got my H1b Stamped and I got my H1B approved for 9 months so it expired in September 2016. However, due to unforeseen reasons, I haven’t made my travel to the USA at that time.
And also in between my passport also renewed
Is there any chance to transfer my H1B new employer and get it re-stamp without going for lottery process?
Waiting for you response
I am also exactly falling under your case. Were you able to transfer?
Hi Kumar,
H1B Visa Expired on September 2016 Without Traveling
My petition got approved and stamped on Dec 2015 and it was valid till Sep 2016. Due to unforeseen reasons and unfortunately my petition got approved for only 9 months(H1B expired in September 2016) hence I haven’t made my travel to the USA at that time.
I can still see my petition status in USCIS portal using receipt number.
Am I eligible for CAP Exempt without going lottery if any of employer is ready sponsor?
Hi Kumar GM, got h1b visa in 2008 and was there 8 months and it was unused due to rescission did not work anywhere, so came back to India and working in IBM, after seeing your post, I would like to know if am eligible for this or not
Thanks
Shiva
I think the above rule explains you can use it any time. You got any official clarification? I got into similar situation
Hi Shiva, am in same state any update you got on this.. if so could you mail dhana.u18@gmail.com
Hi Kumar,
My name is Madhav. I got my H1B approved in 2013 and did not go for stamping. Later, I have shifted to another employer. Hence, 1st employer has revoked my case (Came to know from USCIS website as i have WAC number). Am i eligible now for cap exempt if i wanted to try for H1B?
Pls help. Thanks.
Madhav,
It is slightly grey area. If you have not got stamping, the odds of having the same H1b valid and USCIS accepting the same for transfer is very low. So, you may take a chance with some employer if willing. Check with an attorney as well.
Hi Kumar,
I got H1B approval and valid till 2023 Oct . As there is no project I could not able to go for stamping .
If I could not meet the timeline wil the visa get expired and no use.
Please assist .
Hi Kumar,
I got a stamped H1-b visa in 2011, but I couldn’t travel to US due to some family emergency. From this thread it appears that my case can be considered under visa-exempt category. I can see my EAC status in the US portal. I need some guidance. Do I stand a chance of using my earlier H1-b if I try to find a employer in US?
Regards and thanks
Hi, can somebody suggest me an attorney contact with whom I can connect and check for a fee. Regards,