A cap-exempt Cap-subject and cap-exempt (H-1B)The H-1B category has an annual limit of 65,000 new visas or statuses per fiscal year, plus 20,000 more for people with a U.S. master's degree or higher. Petitions counted toward that limit are cap-subject. Petitions from higher education institutions, their related or affiliated nonprofits, and nonprofit or governmental research organizations are cap-exempt.See it in the glossary employer is one whose petitions do not count against the annual limit, so it does not need to win the March selection. It can file at any time of year. The exemption belongs to the employer type and the role, not to the worker.
Who qualifies
The H-1B regulations describe four groups:
- Institutions of higher education, generally accredited public or nonprofit colleges and universities.
- Nonprofits related to or affiliated with a university, for example through shared ownership or control, or a formal written affiliation agreement.
- Nonprofit research organizations, primarily engaged in basic or applied research.
- Governmental research organizations, whose main mission is research.
The role matters too
The job must be a specialty occupation, and USCIS looks at whether the work directly furthers the exempt organization’s purpose. A worker placed at an exempt institution by an outside company does not automatically qualify.
What the exemption saves
No registration, no lottery, and no waiting for October 1. Universities and affiliated nonprofits are also typically exempt from the ACWIA training fee, one of the items in our cost guide.
What it does not change
Wage, notice and Labor Condition Application (LCA)A Department of Labor form, ETA-9035, that an employer files before petitioning for an H-1B, H-1B1 or E-3 worker. In it the employer attests to standards on wages, working conditions, labor disputes and notice to workers. A certified LCA is then used to support the petition filed with USCIS.See it in the glossary obligations still apply, as in our compliance article. Moving from a cap-exempt job to a private employer generally requires a cap number unless the worker has already been counted. Whether the $100,000 proclamation payment applies to a particular petition depends on the case, so check the current coverage.
Why it matters for students
A graduating student who cannot be selected in the lottery may look at university and research employers. Compare the choices in F-1 versus cap-exempt H-1B at a university, and the lottery background in our lottery explainer.