Can i apply for cap exempt now for my H1B Visa which is stamped in 2008 August and valid till 2011 August

Hi All,

I have an old H1B Visa stamped on 2008 August and valid till 2011 August. But i have not traveled to US on my H1B Visa. Now can i apply for extension of my old H1B visa in CAP Exempt now in 2015?



No, you are not cap-exempt. You had until 2014 to file for cap-exempt petition.

Hi Saurabh,
Thanks for your reply, Just now i am checking on other websites for second opinion on my question, i found the below update. Please let me know if it is correct wrong. Thanks and waiting for your reply.
Also i see the below link, which says it is possible…

Cap Exempt New H-1B
If you have an H-1B visa stamped in your passport and the expiration date is within the past 6 years, you are eligible for a new cap exempt H-1B.

IMO, it is 6 years from approval date or 6 years from the day person last left US on H-1B status.

I don’t think it will work in your case. Still if you find an employer, you can review the case w/ their attorney and they can decide whether to file for you or not.

Thanks Saurabh for your inputs.

Hi Saurabh,

Confusion is based on when are the 6 years calculated from? Is it
Original petition Date?
Petition expiry date?
6 years from petition expiry date?
6 years from last stay in the US?

Any clarity you might have recd on this? Please advise?

Hi Chiranjeev,

Did you get any update or info from any attorney in your case? Any clarity on when are the 6 years calculated from?

IMO, if the person has ever been in US, then it is 6 years from the last day H-1 status was held (i.e. date of leaving US). If the person has never been to US, then it is 6 years from latest petition’s approval date.

Your employer/attorney can go for cap-exempt route even after 6 years and take the risk.

Hi Saurabh,
Thanks for the prompt reply.
One follow up question on your reply.

Assuming attorney still attempts to file the Application as cap-exempt. If it gets approved, all good. but if there’s an RFE or Rejection, how much money would be refunded.

It is obvious that the attorney will charge the employer the Attorney fees since he did his job but what amount of visa fee will be returned?

Any idea on that?


If they pick it up for processing and then deny it as it is not cap-exempt, then no fees is returned.

Hi Saurabh,

Thanks for the prompt replies. Just want to reconfirm, you’re sure that if it gets picked up from processing and during that there is a Denial then no Visa Fee is returned?

I am asking this because then I will set the expectations accordingly with the employer. So that I don’t get any rude shocks later.

Yes, USCIS will not return any fees in that case.

many thanks…your comments are of great help

Hi Saurabh,

Finally, my visa got approved and stamping is also completed in Oct 2016.
Thank you all for your guidance.

Hi Chiranjeevibaba,

did you apply for a cap exempt petition with new employer or filed fresh H1B ?

Your comment will be of great help