The H-1B visa is intended for foreign professionals who are hired by U.S. employers for their skills and expertise in a specialized occupation. However, the H-1B visa has an annual cap of 65,000. Unlike the regular and advanced degree categories, the H-1B cap exempt category does not have a set quota or annual limit. In this post, we’ll explore the H-1B exemption category as well as the H-1B cap-exempt employers list and other relevant details for qualifying.
Note: This post reflects information that goes into effect on October 2, 2020.
The cap typically gets filled a few days after it opens on April 1. This is because there is a much higher demand for H-1B visas than the quota allows. However, there are some employers who may be exempt from the H-1B cap. The advantage for H-1B cap exempt employers is that they are not concerned with numerical limitations or competing against larger companies for new H-1Bs. The USCIS lists the H-1B cap-exempt employers as:
- Higher education institution
- Non-profit organization associated with a higher education institution
- Non-profit research or government organization
If you were previously on H-1B status and are now outside of the country, you may qualify to have a new employer file a cap-exempt petition for the rest of your time for up to three years. However, you must be able to demonstrate that you were in status within the country in the past 6 years and have not used the entirety of your period of stay.
For example, Eric Chen was employed in the United states (on H-1B status) from February 15, 2003, to December 5, 2006. Would he be eligible to file for a new H-1B cap exempt? He would not be eligible to because he wasn’t in status in the past six years. This means he must file in the next lottery season.
Overview of the H-1B Lottery
Due to the influx of H-1B petitions that are filed each year with the USCIS, an annual lottery has been put into place rather than allow a backlog to build. Each year for the past several years, a total of 85,000 petitions have been randomly selected by a computer to go for processing.
- 20,000 petitions are selected for the master’s cap.
- 65,000 petitions are selected for the regular cap.
- 6,800 of those spots are reserved for H-1B1 applicants from Chile and Singapore according to the Free Trade Agreement.
Any employers whose petitions that are not selected in the lottery will have their petitions returned and their filing fees refunded. Because of the uncertainty and arduous nature of this process, many applicants prefer to file with H-1B cap-exempt employers
Higher Education Institution
- Accredited university or college authorized by the state
- Admits students high school graduates
- Public or non-profit institution
- Licensed to administer higher level education
- Awards bachelor’s degree programs
The most common types of not-for-profit institutions are colleges and universities in addition to entities affiliated with medical labs, hospitals, and research units.
Non-profit organizations associated with higher education institutions
- A non-profit entity. Non-profits that do not qualify: service, community, policy, and art organizations.
- Associated with the institution by shared ownership or board control
- Member, branch, or subsidiary of institution
Secondary schools are not accepted for H-1B cap exemption. The only possible opportunity would be if the school contains an affiliation agreement with the higher education institution. Click here to learn more about H-1B Cap-Exempt Jobs for non-profit organizations.
Non-profit Research or Government Organization
- Non-profit research organization
- Conducts basic or applied research
- Government research organization
- Maintains focus on conducting/promoting basic or applied research
Basic research is classified as achieving more knowledge or a comprehensive understanding of a specific area of interest. It also entails further development of existing scientific research, but not for the intention of commercial objectives. Approved areas of interest include science, social science, or humanities.
Applied research involves scientific investigations of discovering new knowledge for the purpose of achieving certain commercial objectives. Accepted research areas, as listed in basic research, are the sciences, social sciences, and humanities.
H-1B Cap Exempt Employers and Jobs
When individuals typically think about H-1B cap exempt employers and the positions available they automatically assume that they have to be a teacher or in some collegiate role when in fact there is a wide range of departments within the universities and colleges.
For example, you might find an H-1B cap exempt employer seeking help in the IT department or even the finance department. What’s more, in many institutions, there are medical centers which employ individuals in healthcare related fields. To learn more about this option, consult one of our attorneys regarding H-1B cap exempt employers.
USCIS Clarifications Regarding Cap Exemptions
In recent years, due to some confusion regarding the meaning of “cap exempt” employers, the USCIS has issued some further clarification. They have made it clear that foreign workers who are not directly employed by a qualifying institution are still exempt from the H-1B cap assuming that they can prove their employment supports or promotes the objectives of a cap-exempt qualifying institution. Showing this type of connection may be difficult for more complex cases.
The Federal Register’s 2017 Final Rule
On January 17, 2017, the Department of Homeland Security’s Federal Register implemented a new rule that expands the H-1B cap-exempt employers list. It does this by broadening the definition of both nonprofit entities and government research centers.
Before the rule, nonprofit entities had to prove that their “primary purpose” was to “directly contribute to the research or education mission of the institution of higher education”. The new rule has changed the wording from “primary purpose” to “fundamental activity”. This phrase is more flexible and allows more entities to qualify as cap-exempt employers.
Finding the Right H-1B Cap Exempt Employers
Locating suitable H-1B cap exempt employers based on your skill set doesn’t have to be challenging if you know where to search. There are a number of online databases dedicated exclusively to H-1B sponsored jobs and H-1B cap exempt employer lists.
In the process of searching, however, be wary of organizations that are not specifically on the H-1B cap exempt employers list or a related subgroup. For instance, an organization must be designated for the relevant tax provision in order for it to be considered a nonprofit organization. Merely claiming to be cap exempt does not suffice to be considered cap-exempt.
Benefits of Cap-Exempt Filing
There are a number of benefits to gain from cap-exempt filing. If this is the first time you have gone through the H-1B application process, then working for a cap-exempt employer is a great option because you won’t be limited by the quota or any predetermined deadlines. Additionally, you maintain the option to transfer to a new cap-exempt employer thereafter.
If you are currently on H-1B status then you will not be counted towards the cap. In other words, you can extend the time period you are in the country, alter the terms of your employment, file for a transfer and more.
Transferring From Cap-Exempt to Cap-Subject
Some applicants may consider filing to enter the U.S. under a cap-exempt employer while maintaining the intention of transferring to a cap-subject employer later on. While this may seem like a convenient way to exploit this system, it may be more difficult than you initially think.
If you plan on moving from cap-exempt to cap-subject employment, be aware that you will be subjected to the regulations surrounding this change. If you have never worked for a cap-subject employer in the past, then you will need to have your new cap-subject employer file an I-129H1 petition on your behalf that is subject to the lottery.
Therefore, there is no way to avoid the cap if you are planning to work for a cap-subject employer at any time during your stay in the U.S.
Recap of H-1B Cap Exempt Benefits
- No annual limits or quota imposed
- No predetermined filing dates
- No predetermined employment start dates
In the past, our office has received a few inquiries as to the process or procedures when moving from a cap-exempt job to a non-cap exempt employer. A few factors must be kept in mind if you find yourself in this position. The first is that you will be counted against the cap if you decide to make the switch. In other words, you’ll need to enter the H-1B visa lottery and hope your petition is submitted in either the regular category or advanced degree category.
There is no guarantee when doing so, which means it is at your discretion and own risk of not being selected. If you decide you want to make the move after the quota has already been exhausted, then you’ll need to wait until the next valid H-1B lottery (begins in April).
Does Premium Processing Make Me Cap-Exempt?
It does not. There is a common misconception held by some applicants and employers that paying the additional fee for the premium processing service will guarantee you a spot in the H-1B lottery or otherwise exempt you from the cap.
This is not true. Premium processing only expedites the I-129H1c petition’s processing time. It does not make you cap-exempt and it does not change your employment start date of October 1st. Make sure that you work with your immigration attorney before deciding to use premium processing to learn if it will be beneficial for your particular situation.
Conclusion – H-1B Cap Exempt Employers
It is highly advised for the foreign professional or U.S. employer to certify the employer’s qualifications under the H-1B cap exemption. The U.S. employer must qualify as one of the above categories. The H-1B cap exempt process is generally fast especially when conducted for a higher education institution.
However, if the organization is not as well known, such as for many non-profit organizations, the case will take fairly more time in order to craft an in-depth analysis. Again, the cap exempt category has no annual limits or quotas imposed, no predetermined filing dates, and no predetermined employment start dates.
Contact an H-1B Immigration Attorney
Our Fort Lauderdale immigration lawyers are knowledgeable in determining if you qualify as an H-1B cap exempt employer. We have completed required documentation and thoroughly understand where/how exemption should be obtained for the qualifying H-1B petitions. SGM Law Group is experienced in advising H-1B petitioners on the best strategy necessary for the opportunity of being exempt from the H-1B cap.