H-1B Cap Exempt - A Complete Guide

Updated: Jun 15

What exactly is H-1B Cam Exempt?

As we know there is a limit to the number of fresh H-1B applications or petitions in a year. The number is ‘capped’ at 65000. Apart from the 65,000 petitions or visas set aside for foreign workers with specialized skills, there are an additional 20,000 petitions that are set aside for those with an advanced degree or a master’s degree. In all, there are 85,000 H-1B petitions that are available each year.


However, in some cases, H1B applications can be filed without going through the H1B cap.

In this Guide we’ll learn more about this special case of H-1B Cap Exempt.

You can also watch the full video for explanation of this topic



H-1B Cap Exempt - Everything you need to know
H-1B Cap Exempt - Everything you need to know

Which employers are considered under H-1B Cap Exempt?

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 that seeks to hire an individual for specialty occupation services to be provided to any of the three entities listed above


H-1B Cap Exempt Higher Education Institute Requirements

For a higher education institution to qualify, it must meet the USCIS mandated criteria which says that an institution of higher education must:


  • Be considered a public or non-profit institution

  • Provide admission to students who have earned a secondary education

  • Be licensed by the proper institution to provide education beyond secondary school

  • Offer educational programs that award bachelor’s degrees or, at a minimum, two-year educations towards a degree


H1B Cap-Exempt Non-Profit Organization Requirements

To be considered an H-1B cap-exempt non-profit that is associated with a government organization or institution of higher education, it must:

  • Be a non-profit entity.

  • Be associated with the institution through shared ownership or board control

OR

  • Act as a branch, member of the subsidiary


According to USCIS, a non-profit research organization is “primarily engaged in basic or applied research.”


What the above basically means is that not-for-profit institutions are universities or colleges that have specific affiliations, such as hospitals or medical labs.


Non-profits that do not qualify are service, community, policy, and art organizations.


Where to Find H-1B Cap Exempt Employers

One of the best sites to start looking is MyVisaJobs. This website has a H-1B Visa Sponsor database. When you try to go through this database you can select an option for cap exempt in the filter and it will show you a number of employers who have previously filed for H-1B for their employees under cap exempt.


H-1B Cap Exempt Jobs

It is easier to assume that H-1B cap exempt jobs would ideally be just for teachers or researchers at a university.

However, you will be surprised to know that employers who fall under the cap exempt category have filed for H-1Bs for various other job profiles. Even for IT related jobs or finance related jobs.


Benefits of Cap Exempt Filing


Apart from the biggest benefit that it doesn’t come under the H-1B lottery cap, the other big advantage is that it can be filed during any time of the year unlike cap subject fresh H-1B which is first filed in March-April for lottery and then based on the lottery results you file a complete petition.


Recap of H-1B Cap Exempt Benefits

  • No annual limits or quota imposed

  • No predetermined filing dates

  • No predetermined employment start dates

Transferring From Cap-Exempt to Cap-Subject


If an employee wants to transfer from a cap-exempt employer to a cap-subject employer and they have never worked for a cap-subject employer before, the new employer will have to file a new petition which 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


Processing Time for H-1B Cap Exempt

It takes around the same to as a regular H-1B. However, one can always opt for Premium Processing and get the result in 15 working days.


What is the H1B cap-exempt minimum wage?

$60,000. If the employer is also paying for benefits, they cannot be counted towards the $60,000.


To read more about ‘exempt H-1B Non-Immigrants, here’s a fact sheet published by the DOL


How can a For Profit Company hire a H-1B Cap Exempt Employee?


Let’s try to understand this with an example:


Let’s assume a company (Company A) that is not cap exempt (say, a consulting company) wants to hire Priya and decides to file an H-1B on her behalf.


Priya would be responsible for onsite tasks at a university’s medical research facility (Company Y), as a part of an agreement between Company A & Y.


Company A files petition and submits proof that Priya will be performing tasks that are exactly similar to those of an employee of the medical research facility i.e., Company Y.


Therefore, Priya would qualify for the exemption even though Company X files the petition because she would be performing tasks that fall under the exemption rules.


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.


However, according to a 2017 Final Rule 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.


Conclusion

As we can see, there are chances that you may be able to get yourself an H-1B Visa even though you weren’t able to secure one during the lottery. H-1B cap exempt category can also be beneficial for H4 dependents who’ve had prior experience with higher education institutions or non-profits and also have a master’s Degree.


However, it is necessary to make sure that you employer does fall under the cap exempt category. A lot of times just proving so can be a complex process.


Good Luck.

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