Cap-Exempt H-1B Visas: What They Are and Who Can Apply

Are you looking to work in the U.S. under the H-1B visa? Did you know that not everyone has to go through the lottery system to apply for this visa? Yes, there are exemptions for some people! Do you want to find out if you are eligible for exemption from the cap and the lottery system? Read on to learn more about the H-1B visa and who qualifies as cap-exempt. 

Who is eligible for an H-1B Visa?

The H-1B visa is a nonimmigrant classification that allows workers in specialty occupations, DOD cooperative research, development workers, and fashion models to enter the United States to work temporarily. For more detailed information, see our other article: “Basics of a H-1B Visa.”

What is the cap on H-1B Visas? 

Each fiscal year, the U.S. Citizenship and Immigration Services (USCIS) places a limit (cap) of 65,000 new H-1B visas, with an additional 20,000 reserved for those holding a master’s degree or higher from a U.S. institution. Because of this, many applicants face uncertainty due to the H-1B lottery system.

However, cap-exempt H-1B visas allow qualified applicants to bypass this limitation and apply year-round. 

Could you be exempt from the cap? 

You can qualify for a cap-exempt H-1B visa if your employer or position meets specific criteria:

1. Your employer is an institution of higher education (e.g., a college or university), meaning it
   1. Awards a bachelor’s degree;
   2. Is a program of at least two years that is acceptable toward a bachelor’s degree; or
   3. Awards a degree that is acceptable for admission to a graduate or professional degree program.
2. Your employer is a nonprofit entity affiliated with institutions of higher education.
   1. It must be a public or nonprofit institution.
   2. This includes teaching hospitals and sometimes primary or secondary schools, though the school must have a formal affiliation agreement or teacher-training agreement with a college or university. 
3. Your employer is a non-profit or U.S. government research organization.
   1. This usually means organizations engaged in research that furthers knowledge in specialty subject areas. 

If you are employed by any organization in these categories, you are eligible for cap-exemption for the H-1B visa; thus, your likelihood of obtaining an H-1B visa is higher. However, this does not guarantee that applicants in these categories will have their H-1B visa applications approved. 

Key Considerations

1. Concurrent Cap-Subject Employment: A cap-exempt H-1B worker can also work for a cap-subject employer at the same time if the cap-exempt position qualifies independently.
2. Change of Employer: If an H-1B worker transfers from a cap-subject employer to a cap-exempt employer, the new petition will be cap-exempt. 
3. Public School Districts: Public schools may qualify as cap-exempt if they have a formal affiliation agreement with a higher education institution (e.g., a Memorandum of Understanding).

Benefits of an H-1B Visa job

If you’re an international student or professional seeking work authorization in the U.S., securing a cap-exempt H-1B job has several advantages:

• Bypass the H-1B Lottery: Apply directly without worrying about the limited visa slots.
• Year-Round Applications: No waiting for annual lottery openings—you can apply any time!
• Quicker Processing Times: Avoid delays associated with the H-1B lottery. International students can apply and stay in the U.S. after graduation.
• Reduced Uncertainty: Secure your work authorization with less risk of rejection due to the cap.

You may also be interested: H-1B Visa Option for Self-Employed Entrepreneurs

Why Hire an Immigration Attorney? 

The H-1B visa can be a complicated process to navigate through on your own. Don’t navigate it alone!

An immigration attorney can help by assessing your eligibility for cap exemption, guiding you through the application process, and ensuring compliance with USCIS regulations. At Khalique Law PLLC, we specialize in employment-based immigration and have successfully helped numerous professionals secure cap-exempt H-1B visas. Contact us for an assessment or consultation to get started on your visa today!