H-1B Cap Exempt

This post will explore a range of H-1B cap-exempt topics, including H-1B cap-exempt jobs, requirements, H-1B cap-exempt employers, minimum wage, H-1B cap-exempt employers, and more.

What Does H-1B Cap-Exempt Mean?

The regular H-1B visa cap dedicates 65,000 petitions to foreign workers with the required skills and qualifications. USCIS allots an additional 20,000 petitions to individuals holding advanced degrees at a master’s level or beyond. However, in some cases, you can file H-1B applications without going through the H-1B cap.

An exemption category is available to U.S. employers that fall into one of the three exemption categories including:

  • Higher education institution
  • Non-profit organization associated with a higher education institution
  • Non-profit research organization  or government research organization
  • A for-profit company seeking to hire an individual for specialty occupation services to be provided to an approved non-profit

It’s essential to recognize two overarching classifications of H-1B cap-exempt petitions. Those are petitions filed on behalf of cap-exempt candidates and those filed by cap-exempt employers.

For a higher education institution to qualify, it must meet the USCIS mandated criteria. According to Section 101 (a) of the Higher Education Act, an institution of higher education must:

  • Be a public or non-profit institution
  • Provide admission to students for a secondary education
  • Have a license from a proper institution to provide education beyond secondary school
  • Offer educational programs that award bachelor’s degrees or, at a minimum, two-year education toward a degree

H-1B Cap-Exempt Non-Profit Organization Requirements

An H-1B cap-exempt non-profit must:

  • Associate with a government organization or institution of higher education, it must:
  • Be a non-profit entity. (Non-profits that do not qualify: service, community, policy, and art organizations)
  • Associate with the institution through shared ownership or board control

OR

  • Act as a branch, member of the subsidiary

USCIS defines a non-profit research organization as one that is “primarily engaged in basic or applied research.” The most common not-for-profit institutions are colleges and universities affiliated with medical labs, research units, and hospitals.

A non-profit organization or entity is tax-exempt and either of the following under the IRS: section 501(c)(3), (c)(4), or (c)(6) (see 26 U.S.C. 501(c)(3), (c)(4), or (c)(6)). In addition, the IRS should approve the non-profit as a tax-exempt organization for research or educational services by the I.R.S.

Here’s a case scenario to better illustrate the process:

Maria Gonzalez is trying to determine if she would be eligible for cap exemption under H-1B. Company X (non-exempt employer) decides to file an H-1B on her behalf. Maria will be responsible for onsite tasks at a university’s medical research facility (Company Y), as part of a joint agreement between Company X and Y.

Company X files the petition and submits proof that she will perform tasks similar to those an employee of the medical research facility would be in accordance with their mission. Therefore Maria qualifies for the exemption even if Company X files the petition because she would be performing tasks that fall under the exemption rules and follow Company Y’s mission.

h1b cap-exempt

Identifying H-1B Cap-Exempt Employer

There are several resources to turn to when looking for an H-1B cap-exempt employer. You can look up employers and find databases that match you to a suitable H-1B cap-exempt employer. Often finding an employer is the most time-consuming process. Please note that we do not take responsibility for the information’s validity in the above database link.

Fortunately, the H-1B applies to many occupations, including those in the sciences, engineering, business administration, and more. Just because you hold a bachelor’s degree does not guarantee that you’re eligible for H-1B status. The job itself has to require the degree and specialized skills you possess.

Who Are H-1B Cap-Exempt Candidates?

If you have previously been granted an H-1B cap exemption, then, according to USCIS guidelines, you will not be subject to the H-1B cap. If, in the past, you were under H-1B status and are currently outside of the U.S., you might qualify to have an employer file a cap-exempt petition.

For instance, a former client of VisaNation Law Group was employed in the U.S. from January 2003 to November 2006. The question he had was whether he would be eligible to file a new cap-exempt H-1B petition. He will indeed be able to recapture the remaining 3 years on the H-1B without having to go through the lottery.

How Long Is a Cap-Exempt H-1B Valid?

An employer may file a cap-exempt H-1B petition for an employee if they previously held H-1B status in the U.S. and haven’t used their six years of status. The petition would be for the remainder of the employee’s allowed time in the U.S..

For example, an employee named Juan Valdez was in the U.S. on H-1B status from February 15, 2003, to December 1, 2006. Would he be able to file for a new H-1B cap-exempt petition? Yes, as he has not used up his 6 years allowed on H-1B.

Another example is Siddhartha, an energy. He was in the U.S. on H-1B status from November 3, 2010, to December 5, 2016. He would also not be eligible because he used up his six years, so he also would need to file in the next H-1B lottery season.

It’s worth noting that this six-year time period is only reset if you have been out of the U.S. for a minimum of one year; then you can file another H-1B under the quota.

Cap-Exempt Premium Processing

Once you identify an employer, you can expedite the processes by opting for premium processing. While times may vary slightly, premium processing typically takes 15 days, and the service fee is $2,500. In contrast, standard processing can take anywhere from three to four months. Note that if USCIS selects your petition, your work start date is no earlier than October 1, 2022, just like any other applicant.

However, it is essential to note that the premium processing feature only expedites the speed at which the USCIS processes your I-129 petition. It does not increase your chances of USCIS selecting your for the lottery, and it does not make you cap-exempt. If your employer files your petition with premium processing and USCIS doesn’t choose it in the lottery, USCIS will refund all fees.

To learn more about a scenario like this or something similar, you can consult a qualified immigration attorney specializing in cap-exempt H-1B situations.

H-1B Cap-Exempt Transfer

An H-1B transfer allows individuals with H-1B visa status or previous H-1B visa status to transfer to a different employer.

As the H-1B visa holder, you do not have to receive permission from the former employer, though you should follow non-compete laws or any other contractual agreements with the employer. For the H-1B visa holder to change employers, the new employer must submit an H-1B Visa Transfer petition with the USCIS. The H-1B visa transfer qualifications are as follows:

  • Must start employment within 30 days on the date indicated on the H-1B Transfer petition submitted to USCIS.
  • You can begin working the day the employer receives the receipt from the USCIS.
  • If you have incurred a gap in employment (ceased employment with an H-1B employer before transfer), it is advised to file premium processing.
  • You must also provide pay stubs as evidence of employment; however, it is possible to submit other documentation, i.e., a letter from the H-1B employer or a leave of absence letter.

While it varies in some cases, processing for an H-1B transfer typically takes four to eight months after submitting the application to USCIS.

Is the H-1B Transfer Cap-Exempt?

Under the H-1B Portability Rule, an H-1B visa holder can change employers and start working for the new employer the day USCIS receives the new employer’s H-1B transfer petition. However,  you must file this new petition before the H-1B holder’s visa expires.

According to the U.S. Department of Labor (DOL), “The portability provision is intended to preserve the legal status of an H-1B nonimmigrant who is already in the U.S.. Portability allows the employed H-1B worker to enter into employment with a new employer provided that:

  • The new employer has filed a non-frivolous Petition for a Nonimmigrant Worker (Forms I-129/ I-129W) for the employment of the H-1B worker before the date of expiration of the worker’s authorized period of stay; and
  • The new employer has submitted, along with its petition, an unexpired, approved Labor Condition application (LCA) covering the same work that the individual is being hired to perform. The new employer may already hold an applicable LCA, or may have sought and received a new LCA in order to submit the petition.”

If you already have a cap-exempt job and want to transfer to a different job that also is cap-exempt, then you can file an H-1B transfer at any point and begin the new position after the H-1B transfer filing has been submitted to USCIS.

Another situation where the H-1B Portability Rule would come into play is when a cap-subject employee worked at a cap-exempt position and wanted to transfer to a new position. Then the new job would not be subject to the H-1B cap. Therefore the transfer could be filed whenever they wanted.

As you can see, the portability rule is quite complex. If you’re seeking an H-1B transfer, speak with an H-1B lawyer at VisaNation Law Group first. The last thing you want to do is submit transfer documents and have them denied because of errors on your part.

Transferring to or from an H-1B Cap-Exempt Employer

There are many instances of people wishing to transfer across employer exemption lines. While the advantages of entering the U.S. under a cap-exempt employer and transferring to a cap-subject employer seem promising, the reality is that this is not a loophole that people can exploit.

If your original sponsoring employer is cap-exempt and you wish to transfer to a cap-subject employer, then the latter employer will need to file an H-1B cap petition on your behalf. This is because you will no longer be a cap-exempt candidate and have not been counted against the H-1B cap.

The new employer will enter you into the lottery based on the educational requirements of the position. If USCIS selects your petition, you can begin working for the cap-subject employer simultaneously. It’s also essential to be conscious of any contracts or agreements you’ve signed with non-compete clauses to avoid repercussions.

How to Apply for H-1B Cap-Exempt

Since cap-exempt visa applications can be filed at any point during the calendar year, you don’t need to abide by specific application windows (no filing deadline or limit to petitions accepted). After you’ve received a job offer and demonstrate that it’s related to your educational proficiencies/degree, the employer needs to submit the H-1B cap-exempt petition on your behalf. Their application will need to demonstrate that their job qualifies as cap-exempt and meets the aforementioned criteria. After it’s submitted, you’ll need to wait to hear whether USCIS has approved it. Once approved, you can start working for the employer at any point after you have a valid visa.

Where Can I Find H-1B Cap-Exempt Employers? 

A helpful site is MyVisaJobs with their H-1B Visa Sponsor Database. On the right-hand side, when searching through the database, you can select “cap-exempt.” You can also filter industry code (NAICS), work city, visa rank, and job titles.

h1b cap exempt employer

What is the H-1B Cap-Exempt Processing Time?

h-1b cap-exempt

The H-1B cap-exempt processing time varies from case to case, and with the backlog of work at USCIS due to COVID-19, it’s unclear the exact time processing an H-1B case will take. The time it takes the DOL with the prevailing wage determination (if needed), the L.C.A., and USCIS’ processing can take six months or more. You can check USCIS processing times online.

One of the advantages of the H-1b cap-exempt processing time to regular processing time is that the H-1b lottery and season doesn’t restrict cap-exempt status. For regular H-1B candidates, they have to spend most of February and March registering for the lottery, waiting to hear if they’re selected, filing petitions if they are chosen, and, if approved, can’t work until October 1. H-1B cap-exempt jobs can hire foreign workers year-round, and those workers can start at any point.

 

H-1B 2022-23 Cap-Exempt Fees

Since the cost to register an H-1B cap petition into the lottery is so low, we expect many entries into the lottery again this year. Below is a chart detailing the H-1B fees including those for H-1B cap-exempt petitioners. To further illustrate what fees a company would be responsible for, here’s an example of one tech company’s fees:

FundTech Company has 65 employees, and 70% of its employees are on H-1B visas. Should they choose premium processing, then they would pay the base fee of $460, the fraud fee of $500, Public Law fee of $4,000 (only applies to companies with over 50 employees and with over 1/2 of their workers on the H-1B visa), the training fee ($1,500 if it applies) and of course the $2,500 premium processing fee plus any additional attorney fees incurred.

Attorney Fees for H-1B 2022-23 Lottery

Note that the lottery stages are tiered, and USCIS will select not all companies to file a complete H-1B petition. See below the attorney fees charged by VisaNation Law Group:

Tier 1: $550 for the initial registration process, which includes all preliminary case analyses required to file the case

Tier 2: $1,900 to be due if the USCIS selects the case in the lottery for filing. This tier includes all form/support letter preparation plus case filing within the timeframe.

Tier 3: $500–$1,500 will be the cost of a Request For Evidence (R.F.E.) response, should one later be issued on the case.

Again, we need to reemphasize that all petitioners can complete the initial registration on their own accord. However, if you do the registration, USCIS will deny your petition. After USCIS chooses your position in the lottery, your company may retain a VisaNation Law Group attorney to complete the process. The legal cost for them to handle that is $2,300, which includes responses on your behalf for any R.F.E.s requested by USCIS and any H-4 applications  (for dependent members of H-1B holders to come to the U.S. to join their relative). Individual R.F.E.s can range between $500- $1600 depending on the case’s circumstances.

Caveats for Multiple H-1B Registrations

If you decide to switch from an H-1B cap-exempt employer to one that is cap-subject, you may encounter a situation where a cap-subject employer will try and submit multiple registrations for you. One of the significant restrictions to registering someone for an H-1B visa is that one employer cannot file various registrations on your behalf for the same job. If you qualify for multiple specialty occupations within the same employer, the USCIS might allow for multiple registrations. However, you can probably expect to receive a request for evidence, which could delay processing.

However, this has given rise to the practice of having related companies or business entities submit individual registrations on behalf of the same employee for the same job. For example, Widget Inc. submits a registration for Aryan as a software engineer. However, Widget Inc.’s parent company, A.B.C. Holdings, also submits a registration for Aryan for the same position. Technically, two different employers submitted H-1B cap petitions, so the rule can be abused.

As of the 2018 Matter of the S- Inc memorandum, the USCIS prohibits related entities from filing multiple petitions for the same person for the same specialty occupation. Suppose an audit determines that you have a petition for two employers that are parents, subsidiaries, or affiliates of one another. In that case, USCIS will revoke all of your petitions from the related employers. This will not affect petitions you may have with other unrelated employers.

Frequently Asked Questions

Can I qualify for an H-1B if I’m currently a J-1 Exchange Visitor? 

Some J-1 Exchange Visitors cannot get H-1B status until meeting the two-year, home-country physical presence requirement or USCIS waives it. If this two-year home country requirement doesn’t apply to your situation, you could be eligible for H-1B status. The best person who can determine this is a qualified immigration lawyer.

What is the H-1B cap-exempt minimum wage? 

According to the DOL, the H-1B cap-exempt minimum wage is at least $60,000 in the calendar year. If the employer is also paying for benefits, they can not be counted towards the $60,000. If the employee works full-time, but for less than a year, they must get a prorated share of the $60,000. For example, if they resign after working only three months, they will still be due compensation of at least $15,000 for their work.

Is it possible to get an H-1B while out of the U.S.?

An employer can apply for your H-1B visa even while you’re living outside of the U.S.. After it’s approved, you need to get an H-1B visa stamp at the U.S. Consulate or Embassy in your home county, and then you can legally enter the U.S..

Would I be able to switch jobs after I get an H-1B visa? 

H-1B transfers are possible. However, if you decide you want to change employers after getting

H-1B status, you’ll need the new employer to file a petition on your behalf. The exception is if you’re cap-exempt and moving to another cap-exempt employer. The most significant benefit of the H-1B Portability rule is that it lets H-1B workers switch jobs without any risk of being out of status. What’s more, an employer can employ the foreign worker sooner than they usually would.

What is a specialty occupation?

A specialty occupation is defined as one requiring “theoretical and practical application of a body of specialized knowledge and attainment of a bachelor’s degree or higher in the specific area of work.” Most commonly, these areas of specialty include the sciences, computer programming, and engineering. In 2020, the top H-1B visa occupations, according to myvisajobs.com, were software developers, computer analysts, operations research analysts, mechanical engineers, accountants and auditors, financial analysts and statisticians, and database administrators.

Can my wife/spouse and children get a dependent visa after I’m approved on H-1B? 

By law, an H-1B holder’s spouse and dependents, children under 21 years old, can apply for H-4 status. In some instances, H-4 holders can also get the ability to work.

Does my employer have to pay me a minimum salary?

There is a minimum salary your employer must pay you as an H-1B worker. The DOL wage establishes and certifies the prevailing wage or the employer’s proposed wage, depending on which one is higher. The employer also enters this wage on the L.C.A. form. Additionally, the employer must indicate that they are not displacing U.S. applicants by hiring a foreign worker.

Can I file the H-1B application myself if I don’t have an employer yet? 

You cannot file it. Only the U.S. employer can file on your behalf.

I’m in the U.S. on an H-1B visa, and it just expired. What do I do? 

There’s a distinction between your visa stamp and your immigration status in the U.S. Your immigration status dictates how long you can remain in the U.S. Your visa is simply a travel document. If the visa found in your passport expires, that doesn’t necessarily mean you have to leave the country right away because your legal status depends on the I-94 expiration date. As long as your I-94 is valid, then you can continue working in the U.S. for your H-1B sponsoring employee. If you are outside of the U.S. and the visa in your passport expires, then you should go to your U.S. consular to apply for a new H-1B visa.

Can I extend my H-1B past the six-year max? 

There are certain situations where you could extend your visa past the six-year limit, and those include if you filed your PERM Labor certification or I-140 at least 365 days prior, then you could get an H-1B extension in one-year increments. Likewise, if USCIS approved an I-140, you can obtain an extension in three-year increments assuming the priority date isn’t current.

Can I travel while I have an amendment pending on my H-1B?

You can travel with it pending as long as there is a valid H-1B visa stamp and approved petition ready for your reentry. As a safeguard, take the amendment receipt notice with you on your travels in case of any issues at reentry. If USCIS approves your amendment while you’re traveling, your employer can forward it to you to use at the port of entry. Due to the current travel restrictions caused by the pandemic, it may be wise to consult with an H-1B lawyer before traveling without an approved H-1B amendment.

Can I get premium processing after filing the H-1B? 

Yes, you can select premium processing while filing or, at a later time, upgrade to it after getting the receipt notice. The 15 days guaranteed processing period begins when USCIS receives Form I-907, Request for Premium Processing Service. Within that period, USCIS will either approve, issue a denial notice, notice of intent to deny, or a request for evidence for your case. If they request you send additional documents and evidence, a new 15 calendar period will begin when they respond to the R.F.E. The cost for premium processing is $2,500.

Does premium processing make me cap-exempt? 

No, it does not.

Can any non-profit organization sponsor me? 

To qualify as an H-1B cap-exempt non-profit research or government research organization, the organization must meet the definition of a non-profit entity and its requirements:

  • Connected or affiliated with an institution of higher learning via shared ownership or control by the same board.
  • Completely operated by the higher learning institution
  • Connected to higher learning institutions through the non-profit being a member, subsidiary, branch, or cooperative.
  • Must have entered into a contractual agreement with the institution that establishes a relationship between them (the non-profit) and the institution for education or research.

Do cap-exempt employers pay the ACWIA fee for H-1B petitions? 

No. Cap-subject H-1B employers must pay the ACWIA education and training fee. Cap-exempt employers do not need to pay this fee. Moreover, according to USCIS, the ACWIA fee is also not required when:

  • A petitioner files its second or subsequent request for an extension of stay with the same employer;
  • A petitioner files an amended petition that doesn’t contain any requests to extend the validity of the petition; or
  • USCIS makes an error and you file a petition to correct the error. However, to be considered exempt from the ACWIA fee, such petitions may not contain any requests to extend the validity unless the USCIS error involves the validity dates.