Are you thinking about applying for an H-1B visa to work in the U.S.? One of the most important factors to consider is whether your job is cap-exempt or cap-subject. While many people know about the competitive H-1B lottery, not all employers have to participate—some are entirely exempt! So, what’s the difference between cap-exempt and cap-subject H-1Bs, and why does it matter? Understanding how these two categories work can have a big impact on your petition process and timeline. Read on to learn more about the differences between these visa categories on how they may affect you.
What is the H-1B visa, and what is the cap?
The H-1B visa is for nonimmigrants looking to work in the U.S. in a specialty field, including engineering, health, law, fashion, and more. See our article Basics of a H-1B Visa to get a better idea of the H-1B visa as a whole. There is an annual cap of 65,000 new H-1Bs that can be admitted, 20,000 of which are reserved for people with a master’s degree or higher from a US institution. However, depending on your employer or position, you may be exempt from this cap! Read on to learn more about what cap exemption means and what the process looks like if you are not eligible.
What is cap exemption?
If you are employed by one of the following institutions, you qualify as cap-exempt for your H-1B visa:
- The employer is an institution of higher education (e.g., a college or university)
- The employer is a nonprofit entity affiliated with institutions of higher education.
- The employer is a non-profit or U.S. government research organization.
For more details on cap-exempt qualifications and stipulations for U.S. employers, see our article: Cap-Exempt H-1B Visas: What They Are and Who Can Apply
Cap exemption means that your petition is not limited by the number of applicants admitted in the same year and is not subject to the annual numerical limit on H-1B visas. This would increase the likelihood that your H-1B visa petition will be approved! However, it is important to note that this does not guarantee petition approval – you must still meet all of the requirements of the H-1B visa. Another benefit of a cap-exempt H-1B is that you can apply year-round rather than waiting for the annual lottery registration period to open.
What if I Am Not Cap-Exempt?
If your employer or job position does not fall into one of the above categories, your H-1B visa is cap-subject. Your petition is subject to the annual numerical limit based on the number of applicants who apply and visas available. The cap-subject H-1B process involves an electronic lottery system to determine if you can apply. If selected, you can proceed with the H-1B visa petition process and submit a petition. The lottery takes place in March, meaning all those that are cap-subject must register during this period. This timeline is strict; if you miss the deadline, you will have to wait until the following year to participate in the lottery. Employment for cap-subject H-1B visas typically begins in October of the same year.
If you are subject to the cap, it might be helpful to know that the limit number slightly fluctuates based on special exemptions. Of the 65,000 regular H-1B visas available each year, 6,800 slots are set aside specifically for applicants from Chile and Singapore in accordance with free trade agreements. If these visas aren’t used, the leftover spots are added back to the regular H-1B cap for the following fiscal year.
Tips for applying for an H-1B visa
Whether cap-exempt or cap-subject, you may want your H-1B petition expedited. For a premium processing fee, the USCIS will review and issue a decision on your petition within 15 business days. If they do not meet this deadline, you will be refunded your premium processing fee. Please note, filing for premium processing will not increase your chances in the lottery but it will give you peace of mind to know a decision on your petition sooner rather than later, and plan for your future accordingly.
You may also be interested: Similarities and Differences Between the H-1B and O-1 Visas
Why Hire An Immigration Attorney?
The H-1B is one of the most sought-after work visas in the U.S., but navigating the process—whether you’re cap-exempt or cap-subject—can feel overwhelming. An immigration attorney can help! At Khalique Law PLLC, we can assess your eligibility to decide the best visa for you and guide you through the process. If you have any questions about the H-1B visa process, contact us today for a consultation!
