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H-1B Visa has a cap of 65,000 annually, plus 20,000 for those who studied in the USA. However, there is a way to pass this cap, that’s called cap exemption. Some employers, such as universities, and nonprofit organizations connected to these institutions, have the advantage of employing foreign professionals without minding the 85,000 gap.
Unlike the regular H-1B process, which requires candidates to go through a lottery and stick to strict deadlines, cap-exempt applications can be submitted anytime during the year. This flexibility makes it especially useful for employers and workers in fields like education, research, and healthcare, making it easier to hire talented professionals from around the world.
What is Cap-Exempt H-1B?
Cap-exemption is a special condition for the H-1B visa and lets certain employers and professionals avoid the lottery. Eligible employers include universities, nonprofit organizations tied to these institutions, and nonprofit or government research organizations. Unlike regular H-1B applications, which face a lottery system and a yearly limit, cap-exempt petitions can be submitted anytime, offering more flexibility for both employers and employees.
Why Should I Apply for H-1B Cap Exempt Jobs?
H-1B cap-exempt jobs have the advantage of not being restricted by the annual H-1B cap. They also offer the flexibility to file applications at any time throughout the year, unlike the standard process, which only allows applications during specific months. This flexibility makes the process smoother and less complicated.
For example, if you receive a job offer in early September, the standard process would require your employer to wait until April to file your application. Additionally, the earliest you could begin working would be October of the following fiscal year. In contrast, H-1B Cap-exempt jobs bypass this lengthy and exhausting process, providing a more efficient and streamlined alternative.
What are the Pros and Cons of Cap Exempt H-1B?
The Cap-Exempt H-1B visa comes with many advantages that make it a good choice for skilled workers. One of the biggest benefits is that applications can be filed any time of the year, so there’s no need to worry about the H-1B lottery or the deadlines. Also, these visas are not limited by the 65,000 regular cap or the 20,000 U.S. advanced degree cap. Jobs under the exemption are mostly in fields like education, research, or healthcare, which can offer stable long-term career growth. Employers also benefit from the exemption because they don’t need to wait for specific application periods, which makes hiring faster. If someone already has a cap-exempt H-1B, they can switch to another cap-exempt employer easily, which gives them more flexibility.
There are some disadvantages of H-1B Cap exemption, such as, it is only limited to specific employers. This limits job choices. Most of the jobs are in certain fields like education or healthcare, which might not match everyone’s career plans.
H-1B Cap Exempt Eligibility: Who Qualifies for a Cap-Exempt H-1B Visa?
Eligibility for an H-1B cap-exempt visa mostly depends on the employer who is offering the job. Employers that qualify for cap exemption are:
- Institutions of Higher Education
- Nonprofit Organizations Affiliated with Institutions of Higher Education
- Government Research Organizations
- Nonprofit Research Organizations
These types of employers are not limited by the annual H-1B cap or the lottery system, therefore, they can submit their H-1B applications anytime during the year. In some cases, professionals working under joint employment agreements with cap-exempt organizations might also qualify. This flexibility is designed to help fields like education, research, and healthcare attract skilled international workers without worrying about the cap limits.
Which Employers Are Eligible For Cap-Exempt H-1B?
Employers who qualify for a cap-exempt H-1B visa are in specific categories that focus on education, research, and nonprofit work.
One category includes higher education institutions, like accredited colleges and universities in the U.S. that provide post-secondary education. These institutions are important for supporting academic growth and new ideas.
Another category is nonprofit organizations connected to higher education institutions. These are nonprofits that have formal relationships with universities, such as teaching hospitals or research foundations. Under 8 CFR §214.2(h)(8)(ii)(F)(2), a nonprofit organization is considered affiliated or related to a higher education institution if it meets any of the following criteria:
- It is part of the same board or federation as the higher education institution,
- It is controlled by the same board or federation as the higher education institution,
- It is operated by a higher education institution,
- It is associated with a higher education institution as a member, branch, cooperative, or subsidiary,
- It has an official written affiliation agreement with the higher education institution for research or educational purposes and actively collaborates with the institution, with the nonprofit organization’s primary activities directly contributing to the research or educational mission of the higher education institution.
Nonprofit research organizations are also eligible. These organizations focus on doing or supporting basic and applied research, helping with scientific and technological progress.
Government research organizations at federal, state, or local levels, which focus on different research fields, also qualify for the cap exemption.
In some cases, employers who do not directly qualify for cap exemption can still file for employees working at a cap-exempt location. For example, a company can hire someone to work at a qualifying institution, using the cap exemption indirectly.
Which Employees and Jobs are Eligible For Cap-Exempt H-1?
Employees and jobs that are eligible for a cap-exempt H-1B visa are usually linked to positions offered by cap-exempt employers. These jobs must be for highly skilled workers in specialty occupations that need at least a bachelor’s degree in a specific field. This helps international professionals bring their skills to important fields without worrying about the H-1B cap.
How Can I Apply for an H-1B Visa as a Cap-Exempt Worker?
Applying for an H-1B visa as a cap-exempt worker involves several steps tailored to the specific requirements of cap-exempt employers. First, identify a cap-exempt employer, such as a university, affiliated nonprofit entity, or a nonprofit/government research organization, offering a role that qualifies as a specialty occupation. Once hired, your employer must file a Labor Condition Application (LCA) with the U.S. Department of Labor to certify the job meets prevailing wage and workplace conditions. After LCA approval, the employer files Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS), indicating the cap-exempt nature of the petition. Supporting documentation, including your qualifications, job details, and evidence of the employer’s cap-exempt status, must accompany the petition. Because cap-exempt petitions are not bound by the annual cap or lottery system, they can be submitted year-round, offering greater flexibility in the application process.
Step-by-Step H-1B Cap-Exempt Application Process
- Identify a Cap-Exempt Employer: Search for job opportunities with eligible institutions such as universities, nonprofit organizations affiliated with educational institutions, or nonprofit/governmental research organizations.
- Secure a Job Offer: Obtain a formal job offer for a specialty occupation that requires at least a bachelor’s degree and meets your skills and qualifications.
- Labor Condition Application (LCA): The employer files an LCA with the U.S. Department of Labor to confirm compliance with prevailing wage requirements and workplace conditions.
- Gather Supporting Documents: Provide necessary documents, including your resume, academic credentials, proof of prior work experience, and passport details, to support your employer’s petition.
- File Form I-129: The employer submits Form I-129, Petition for a Nonimmigrant Worker, to USCIS, specifying the cap-exempt nature of the petition.
- Submit Supporting Evidence: Include documentation proving the employer’s cap-exempt status (e.g., university accreditation or nonprofit designation) and details about the job.
- USCIS Processing: Wait for USCIS to review and process the application. Premium processing may be available to expedite the decision.
- Approval Notice: Upon approval, receive Form I-797, Notice of Action, as confirmation of your H-1B status.
- Apply for a Visa (if abroad): If outside the U.S., schedule a visa appointment at a U.S. consulate or embassy in your country with the approval notice and other required documentation.
- Start Employment: Once the visa or your change of status is approved, you can begin working in the cap-exempt role.
Cap Exempt H-1B Visa Processing Time: How Long Does It Take?
The processing time for a cap-exempt H-1B visa varies depending on several factors, including the workload of U.S. Citizenship and Immigration Services (USCIS) and the specific circumstances of the application. Typically, standard processing can take anywhere from 2 to 6 months. However, employers can opt for premium processing, which guarantees a decision within 15 business days for an additional fee. Other factors, such as the time required for the Labor Condition Application (LCA) approval by the Department of Labor, which usually takes about 7 to 10 business days, can also influence the timeline.
