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The H‑1B lottery is meant to ration new entrants to the program. Congress therefore built in a rule that keeps you out of the lottery if you have already been through it: a worker who was counted against the cap once does not get counted again, so long as there is still time left in their six‑year H‑1B period.
In practice this is the single most common reason an H‑1B petition can be filed outside the lottery. It applies to a change of employer, a return to the United States after time abroad, an amended petition, an extension, and a second, concurrent job.
The provision is INA § 214(g)(7), 8 U.S.C. § 1184(g)(7). It says that an alien already counted toward the cap within the six years before a petition is approved "shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed." It adds that where multiple petitions are approved for one person, that person is counted only once.
Two things follow from the wording. The prior counting has to have happened within the six years before the new petition is approved, and the exemption disappears the moment you become eligible for a fresh six‑year period. Everything else on this page is a consequence of those two clauses.
You lose the benefit of the prior count if, when the new petition is filed, you would be entitled to a brand new six-year period. That happens after you have resided and been physically present outside the United States for a full year, apart from brief trips for business or pleasure.
This is not the trap it sounds like, because the choice is yours. See the next section.
If you spent a year or more outside the United States without using up your six years, the regulations give the petitioner two options. The petition can ask to recapture the unused portion of the original six-year period, in which case the regulation states the petition "will not subject the beneficiary to the H‑1B numerical cap, whether or not the alien has been physically outside the United States for 1 year or more and would be otherwise eligible for a new period of admission." Or the petition can ask for a new six-year period, which means going back through the lottery.
Which one is better depends on how much unused time is left and how long the job is expected to last. Someone with four years remaining will usually take the recapture and start work without waiting for a March registration. Someone with six months remaining may prefer to gamble on a fresh six years.
Separately from the year-abroad rule, any period of more than 24 hours spent physically outside the United States during the validity of an approved H‑1B petition does not count toward the six-year maximum, "regardless of whether such time meaningfully interrupts" the stay and regardless of the reason for the absence. That time can be recaptured in a later petition.
The regulation places the burden on the petitioner to request and document the recapture, and points to passport stamps, Form I‑94 arrival-departure records and airline tickets, presented with a chart of the dates spent abroad. USCIS may grant all, part or none of what is requested.
This is the point most often missed, and the old version of this rule is the reason. If your earlier H‑1B was filed by a cap-exempt employer — a university, an affiliated nonprofit, or a nonprofit or governmental research organization — then no cap number was ever used for you. You were never counted, so there is nothing to carry forward.
The consequence is set out in the regulations: when cap-exempt employment ceases and the worker is not the beneficiary of a new cap-exempt petition, the worker becomes subject to the cap unless previously counted within the relevant six-year period. A researcher moving from a university laboratory to a private company will normally have to enter the lottery, even after years in valid H‑1B status. Planning for that move should start early.
Being selected in the lottery and having a petition approved is not always the same as having consumed a cap number. Under the regulations, if an approved petition goes unused because the beneficiary never applies for admission, the petitioner is required to notify USCIS, the petition is revoked, and USCIS takes the unused number back into account for that fiscal year.
If you were selected years ago but never entered the United States or never began the employment, do not assume you are exempt. Establish what actually happened to the petition before relying on it.
The new petition has to show that the prior count occurred. Prior H‑1B approval notices, the earlier petition's receipt number, I‑94 records and old visa stamps are the ordinary proof. If you have moved between employers several times, it is worth assembling the full chain rather than the most recent approval alone, because the six-year clock and the counting date are separate facts and USCIS may want both.
Prior counting keeps you out of the lottery; it does not extend the six-year limit. Extending beyond six years depends on the green card process: the regulations allow one-year increments where at least 365 days have passed since a labor certification or an employment-based immigrant petition was filed, and a separate provision allows three-year increments for workers held up by immigrant visa backlogs. See the seventh-year extension page and time spent in H-4 and L-2 status.
This page is general information about U.S. immigration law, not legal advice, and no attorney-client relationship is created by reading it. Whether a particular person was counted, and how much time remains in their six-year period, turns on the individual record. Current as of August 2026; verify the statute at 8 U.S.C. § 1184 and the regulation at eCFR before relying on it.