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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.
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.
(Note: this page will be updated once we receive more updates from USCIS.)
The salary must be:
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 employers include:
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:
An H-1B cap-exempt non-profit must:
OR
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 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.
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.
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.
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.
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.
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.
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:
While it varies in some cases, processing for an H-1B transfer typically takes four to eight months after submitting the application to USCIS.
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.
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.
Georgia Institute of Technology
https://www.gatech.edu/
University of Michigan
https://www.umich.edu/
California Institute of Technology
https://www.caltech.edu/
University of California, Los Angeles (UCLA)
https://www.usc.edu/
Howard University
https://howard.edu/
Princeton University
https://www.princeton.edu/
Massachusetts Institute of Technology (MIT)
https://www.mit.edu/
University of California, San Diego
https://ucsd.edu/
University of Southern California
Carnegie Mellon University
https://www.cmu.edu/
National Bureau of Economic Research
https://www.nber.org/
Mayo Clinic
https://www.mayoclinic.org/
Research Corporation Technologies
https://rctech.com/
Smithsonian Institution
https://www.si.edu/
American Association of University Women
https://www.aauw.org/
American Chemical Society
https://www.acs.org/
American Physical Society
https://www.aps.org/
National Academy of Sciences
https://www.nasonline.org/
American Speech-Language-Hearing Association
https://www.asha.org/
Association of American Medical Colleges
https://www.aamc.org/
Los Alamos National Laboratory
https://www.lanl.gov/
Lawrence Livermore National Laboratory
https://www.llnl.gov/
Sandia National Laboratories
https://www.sandia.gov/
Fermi National Accelerator Laboratory
https://www.fnal.gov/
Jet Propulsion Laboratory
https://www.jpl.nasa.gov/
National Renewable Energy Laboratory
https://www.nrel.gov/
Pacific Northwest National Laboratory
https://www.pnnl.gov/
Oak Ridge National Laboratory
https://www.ornl.gov/
National Institutes of Health
https://www.nih.gov/
Brookhaven National Laboratory
https://www.bnl.gov/
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.”
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:
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.
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.
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.
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Below you will find answers to the most commonly asked questions about the topic:
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.
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.
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.”
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.
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.
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.
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.
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.
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.
You cannot file it. Only the U.S. employer can file on your behalf.
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.
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.
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.
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.
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.
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.
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:
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:
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.
