H-1B Cap Exempt, Processing Time & Requirements in 2024-2025

Must-Know Facts

  • H-1B cap-exempt employers include  Institutions of Higher Education, Nonprofit Organizations Affiliated with Institutions of Higher Education, Government Research Organizations, and Nonprofit Research Organizations.
  • Cap-exempt employers do not have a set limit on the number of H-1B visas they can sponsor.
  • BREAKING NEWS: USCIS has announced that they reached the FY 2025 H-1B numerical allocations, including the master’s cap. Petitioners have until June 30, 2024, to file the H-1B cap petitions for selected individuals.

The H-1B visa is a coveted option for foreign professionals, but navigating the complex process requires a thorough understanding. Certain foreign workers who are employed by H-1B cap-exempt organizations need not participate in the annual H-1B cap lottery.  From lottery dates to eligibility exemptions, it’s crucial to grasp the nuances. While some may bypass the lottery through USCIS exemptions, meeting the rigorous criteria is key. At the end of the day, an immigration attorney will best be able to tell you whether you qualify and what the next appropriate steps are on your journey.

If you were selected in the 2024-25 H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition.

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Important Update

USCIS has finalized the selection process for H-1B registrations for Fiscal Year 2025. Individuals who have been selected are advised to take swift action. Employers can access the official selection notice, which includes crucial instructions for both beneficiaries and themselves to ensure the timely submission of a fully prepared H-1B petition. The entire H-1B application can be submitted online or via mail to USCIS between April 1, 2024, and June 30, 2024, which marks the submission deadline.

Given the time-sensitive nature of the H-1B petition process, we strongly advise all concerned parties to commence preparations without delay. Delays in initiating the H1B filing could exacerbate any unforeseen issues that may arise, potentially jeopardizing the timely submission of the petition. Our experienced H1B legal team stands ready and available to provide comprehensive assistance throughout the entirety of the H-1B petition process.


In preparing the H-1B petition, it is essential to ensure that a copy of the official selection notice is included. Moreover, it is crucial to understand that only the employer listed on the notice is authorized to file the petition on behalf of the beneficiary. Also, the Beneficiary’s passport or travel document used in Registration should be included in the H-1B petition. Any discrepancy or variance must be explained in the H-1B filing such a company legal name change or renewal of the passport or travel document.

Who is Exempt from the H-1B Cap? 

H-1B ‘cap-exempt’ means the employer is not subject to the annual cap imposed on H-1B petitions and therefore the petitioner is not subject to the cap. Per the DOL, an exempt H-1B nonimmigrant is an H-1B worker who either receives $60,000 annual wages or has attained a master’s or higher degree (or its equivalent) in a specialty related to the intended H-1B employment. Learn more about H-1B Employers.

H-1B Visa Petition Graphic

H-1B Cap-Exempt Wages Examined

The salary must be:

  • Paid “free and clear” and “cash in hand”
  • Not inclusive of benefits such as life/health insurance, pension plans, etc. counting 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.)

If you hear the term cap-subject thrown around that means the employer is not cap-exempt. So how are visas specifically allotted for cap-subject and advanced degree petitioners?  The regular H-1B visa cap dedicates 65,000 petitions to foreign workers with the required skills and qualifications. USCIS allotts 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.

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

H-1B cap-exempt employers include:

  • Institutions of Higher Education: This includes universities and colleges.
  • Nonprofit Organizations Affiliated with Institutions of Higher Education: Certain nonprofit entities that are affiliated with or related to an institution of higher education may be exempt.
  • Government Research Organizations: Organizations that are primarily engaged in basic or applied research and are either part of the U.S. government or have a written agreement with a federal department or agency can be exempt.
  • Nonprofit Research Organizations: Nonprofit organizations that are engaged in research and meet specific criteria outlined in the Immigration and Nationality Act (INA) may qualify for exemption.

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

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


  • 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.

If you were selected in the 2024-25 H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition.

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H-1B Cap Exempt Infographic

Real World Scenario – For-Profit Company Hires Cap-Exempt Employee

Here’s a case scenario to better illustrate the process with our client Maria:

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 2023-2024

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 demonstrated 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.

If you were selected in the 2024-25 H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition.

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

As of 2024, the H-1B cap-exempt processing time still varies from case to case but generally takes about 7 months on average. This time frame includes various stages, such as the Department of Labor dealing with the prevailing wage determination (if necessary), the processing of the Labor Condition Application, and the processing time of the USCIS. It’s important to note that this is an average estimate and actual processing times can be shorter or longer depending on the specific details of each case. Applicants and employers are advised to regularly check the USCIS website for the most current processing times, as these can fluctuate based on workload and other factors.

One significant advantage of the H-1B cap-exempt category over the regular H-1B process is that it is not subject to the H-1B lottery and the associated timeline. Regular H-1B applicants typically spend a significant part of February and March registering for the lottery, waiting to find out if they have been selected, and then filing their petitions if chosen. Furthermore, even if approved, these regular H-1B visa holders often cannot commence employment until October 1 of that year. In contrast, H-1B cap-exempt positions allow for the hiring of foreign workers at any time of the year, and these workers can begin their employment as soon as their visa is approved, offering greater flexibility for both employers and employees.

h1b cap exempt processing time 2023-2024

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. 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.

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.

If you were selected in the 2024-25 H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition.

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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.

h1b cap exempt employer

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.

H-1B Cap-Exempt Employers List

The following is a list of past H-1B cap-exempt employers. It’s important to confirm that these are still eligible organizations, as things may change.

Note: The lists below are samples of various cap-exempt categories, but not the entire lists. 

H-1B Cap-Exempt Institutions – Higher Education

Georgia Institute of Technology

University of Michigan

California Institute of Technology

University of California, Los Angeles (UCLA)

Howard University

Princeton University

Massachusetts Institute of Technology (MIT)

University of California, San Diego

University of Southern California

Carnegie Mellon University

Non-Profit Organizations Associated with Institutions of Higher Education

National Bureau of Economic Research

Mayo Clinic

Research Corporation Technologies

 Smithsonian Institution

American Association of University Women

American Chemical Society

American Physical Society

National Academy of Sciences

American Speech-Language-Hearing Association

Association of American Medical Colleges

Cap-Exempt Governmental Research Organizations

Los Alamos National Laboratory

Lawrence Livermore National Laboratory

Sandia National Laboratories

Fermi National Accelerator Laboratory

 Jet Propulsion Laboratory

National Renewable Energy Laboratory

 Pacific Northwest National Laboratory

Oak Ridge National Laboratory

National Institutes of Health

Brookhaven National Laboratory

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.

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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.

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. Note that we assume no responsibility for the accuracy of the job listings or positions listed on this website. It is highly recommended to retain a professional immigration attorney who knows the regulations and restrictions outlined by USCIS pertaining to H-1B positions.

h1b cap exempt employer 2024-2025

Caveats for Multiple H-1B Registrations

Under the new regulation, USCIS will now select H-1B registrations based on unique beneficiaries rather than by registration. This marks a departure from the previous system where an employer could submit multiple registrations for the same potential employee, potentially increasing their chances of being selected. The revised process allows multiple registrations per beneficiary but limits selection to unique individuals. This change is designed to level the playing field, ensuring that candidates with a single job offer have the same chance of being selected as those with multiple offers.

While the rule permits multiple registrations for a single beneficiary, it introduces a caveat. If a petitioner submits more than one registration per beneficiary in the same fiscal year, all registrations by that petitioner for the beneficiary will be deemed invalid. USCIS may then deny or revoke the approval of any petition filed based on those registrations. This measure is introduced to prevent potential abuse of the system.

If you were selected in the 2024-25 H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition.

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Frequently Asked Questions

Below you will find answers to the most commonly asked questions about the topic:

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.

Do I receive protections under the H-1B program as an H-1B cap-exempt worker?

All H-1B immigrants are entitled to protections under the H-1B program including the provisions as they pertain to regulations, wages, whistleblower protections, etc. Discuss this more with your immigration attorney if you have specific questions related to your rights under federal immigration laws.

Are there advantages for an employer to hire an exempt H-1B petitioner? 

While the specific advantages may vary on a case-by-case basis there are some explicitly outlined by the U.S. Department of Labor Fact Sheet #62Q, “H-1B-dependent and willful violator employers which employ only exempt H-1B workers on a Labor Condition Application (LCA) are relieved from the additional obligations with which they would otherwise be required to comply: non-displacement, recruitment, and hiring.”

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 a foreign worker sooner than they usually would.

Find out about different types of green cards in the U.S.

If you were selected in the 2024-25 H-1B visa lottery, contact VisaNation attorneys for filing your H-1B petition.

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What are the benefits of the H-1B visa?

There are a number of unique benefits that make the H-1B visa highly desirable. It is a dual intent visa which means you can pursue legal permanent residency while under this status. Another benefit is that you can bring spouse and children under the H4 visa, you can port your status from one employer to another during and there are other advantages that may be unique to your situation.

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 past years, 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.

Are there certain types of jobs that are harder to get on H-1B status?

There isn’t a definitive answer this question per se but some positions like those in sales may be challenging to obtain because they don’t have cut-and-dry training required like some more structured positions.

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 re-entry. 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-day 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 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 but the advantage is that it reduces processing time down to 15 days for a  service fee of $2,500. If you are interested in a cap-exempt transfer and have a gap in employment we recommend taking advantage of the premium processing service.

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.

Can cap-exempt employers sponsor H-1B visas for foreign workers indefinitely?

Employers who are cap-exempt can sponsor H-1B visas with more flexibility, but there are still certain limitations. As long as they meet the criteria set by the USCIS for each individual case, they can sponsor H-1B visas without being subject to the annual cap.