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How to use Cap Exempt H1B with FAQs



If you have traveled to the USA and If you were previously counted under H1B Annual Cap and you have and not utilized the entire 6 years of H1B stay, you can file a cap-exempt H1B petition at any time to recapture the remaining time on H1B. 

What is cap-exempt H1B?

If you were “GRANTED” an H1B in the last 6 years, you may file a new H1B under cap-exemption. In other words, you are not subject to the annual cap, a new or the same Employer can file an H1B like an H1B Transfer.

What do you mean by granted in the last 6 years?

It is not clear what implies GRANTED. It could be the date of approval or the date of expiry. However, our research indicated that you can still count from the date of expiry. Few H1B Employers and Attorney websites have also confirmed that if someone had a valid H1B within the last 6 years, you may still use it under cap-exempt H1B filing. If you were previously counted under H1B Annual Cap and you have and not utilized the entire 6 years of H1B stay, you can file a cap-exempt H1B petition at any time to recapture the remainder time on H1B. 

However, a memo from USCIS's Associate Director Michael Aytes, says the following:

"There have been instances where an alien who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the “remainder” of his or her initial six-year period of maximum admission, rather than seeking a new six-year period of admission. Pending the AC21 regulations, USCIS for now will allow an alien in the situation described above to elect either (1) to be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted or (2) seek to be admitted as a “new” H-1B alien subject to the H-1B cap.


I have an H1B approved in the year 2012, I worked in the US for 2 years, am I cap exempt?

Yes, you are eligible to file under cap-exempt status, as your H1B was approved in 2010 and it is within the last 6 years. You will have 4 more years on H1B.

I have spent over 1 year out of the country, am I eligible to get 6 years on cap-exempt H1B?

No, when you are using a cap-exempt H1B, you can only recapture the remainder of the time left on your H1B.

My H1B was approved in 2012 and expired in 2013, am I cap exempt?

Yes. Please show proper evidence to USCIS

I am overseas, I have NOT traveled to the US, both my H1B I-797 and H1B visa stamping expired, am I still eligible?

Yes, you are eligible as long as you meet the 6 Year requirement.

If I file under cap-exempt, do I have to wait until October 01 to begin employment?

No, it depends on the employment start date your Employer requests on the I-129 petition. Start date of October, 01 applies to Cap-subject H1B petitions.

My H1B was approved in 2012, I have never stamped or traveled to the US, am I eligible for cap-exemption?

Yes, you are eligible for cap-exemption

I have a valid H1B visa stamp, I have not traveled to the US, if I get a new H1B do I have to stamp again?

Yes, if you have not traveled, you must stamp again.

My Previous H1B Employer canceled the H1B, am I still eligible?

Yes, even if your previous H1B was canceled by the previous Employer. However, please note that the H1B may not be eligible for cap-exemption, if it was canceled prior to H1B effective date of October 01.

What documents do I need to send to my new Employer to file under H1B cap exemption?

Usually, a copy of the I-797 a notice or a Receipt notice, along with other H1B filing documents, if you are sending a Receipt Notice, please make sure your H1B was approved by checking the case status at USCIS.GOV

I do not have copies of H1B approval or receipt, any solution?

If you have the receipt number, you may check status at uscis.gov and send a screenshot. The online case status systems do not provide your name and you want to ensure it is your receipt number. It’s better to obtain copies of your documents under FOIA request directly from the USCIS.

What is an FOIA request?

FOIR is the USCIS Freedom of Information Request, you may request USCIS to send you copies of documents filed. They will send you a copy of the I-129 petition which has your receipt number and approval stamped on it.

How do I submit an FOIA request?

You may write a letter with your Name, passport number and case type. Please use a United States address as the report is being sent in a Compact Disc. You can mail or fax NOIA request for USCIS records, including alien files and procurement information, to the National Records Center. 

U.S. Citizenship and Immigration Services 
National Records Center, FOIA/PA Office 
P. O. Box 648010 
Lee’s Summit, MO 64064-8010 
Live Assistance: 1-800-375-5283 
Fax (802) 288-1793 or (816) 350-5785 

Alternatively, you may file FORM G-639 and it is not required DOWNLOAD. The form may be Mailed, emailed or faxed. However, emailing did not yield a good response based on our recent experience.

How long does it take to obtain records?

USCIS takes anywhere between 1-3 months to process your request, so plan right away

I am not in the United States, can I still submit a request?

Yes, it’s better to use a local US address of a friend or relative or even your new employer.

Your Comments, Experience, Suggestions matter most to our H1BSupporters - Please take a moment to comment on this Article. Thank you!

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I have my H1B approved in July 2015 then stamped in Dec 2015 but never used. I never travelled to USA.

Can I still apply for H1B cap exempt with a different company ? 

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