Query Related to Expired H1B and Need to get a New H1B /Lottery

Dear Friends ,

I had got my H1B Visa in 2006 and its expiry date was 2008. I had not used this Visa and travelled/worked in USA through this Visa.

Now , if needed a new H1B in 2022 , would I need to Apply for the Lottery process again or can I directly submit the Request for H1B by virtue of me having the H1B earlier ?

Kindly advise based on your experience and information.

Thanks in advance.

Regards
​​​​​​​Kurian

Once you are approved an H1B under cap-subject, you are treated cap-exempt for the 6 years term of the H1B time that you have spent in the US working for the H1B employer.

Once counted against the cap, you can recapture the remainder time on your H1B any time after your H1B approval date, there is no limit as such.

So in your case, you had H1B petition approved and H1B visa stamped but you never travelled to the US to work for an H1B employer, you are eligible to capture all unused time ( up to 6 years).

Any H1B sponsoring employer can file a new H1B petition under cap-exempt (no lottery) and once approved you can get H1B visa stamping done and travel to the US to work for H1B sponsoring employer.

Excerpts from the Federal rule register link below:

**In the final rule, DHS clarifies that, consistent with its existing policy, there is no time limitation on recapturing the remainder of the initial 6-year period of H-1B admission under INA 214(g)(4).[83] DHS notes, however, that the remainder of any time granted pursuant to an AC21 extension cannot be recaptured. The purpose of this clarification is to promote consistency and efficiency in recapture determinations in accordance with the policy objectives described in USCIS’s December 5, 2006 policy memorandum from Michael Aytes outlining the recapture policy.[[84]
(Federal Register :: Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers)]

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Thanks a lot for your detailed response. Appreciate that a lot.

I just wanted to flag following two points:

  1. The visa stamping was done in 2006 and is on my passport, but I do not have any documentations from that. It is around 15 years old.

  2. I have not travelled to USA or even got one payslip for this previously stamped visa

Even after considering both the above points, will I be still exempted from thr lottery and I can directly file for the H1b from another employer ?

Yes. Do you have the copy of I-797 (H1B approval notice)?

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Unfortunately, no.
I only have the H1b stamp on my passport. No other documentation.

Check with your sponsoring employer if they can share. Otherwise, I do think the copy of visa stamp in passport may be enough proof to apply for cap-exempt H1B petition.

Try to file a FOIA request with USCIS to search and find your H1B approval.

If they are able to find, they may share the copy of i797 and you will hit the jackpot.

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