Cap-Exempt H-1B Visa: A Comprehensive Guide

For foreign nationals aiming to work in the U.S., the H-1B visa is a popular but highly competitive option, particularly due to the annual cap that limits the number of new visas available each year. The cap-exempt H-1B visa offers a valuable alternative, without needing to go through the lottery process and opening the door to year-round employment for certain organizations and roles.

Here’s everything you need to know about cap-exempt H-1Bs, how they work, and why they could be the ideal solution for those navigating H-1B visa challenges.

What is a Cap-Exempt H-1B Visa?

A cap-exempt H-1B visa allows certain employers to sponsor foreign workers without being subject to the annual H-1B cap or lottery. While standard H-1B visas are capped at 65,000 per year, with an additional 20,000 for those holding advanced degrees from U.S. institutions, cap-exempt employers can file H-1B petitions at any time and without numerical restrictions or going through the lottery.

Typically, cap-exempt H-1Bs are associated with nonprofit research institutions, universities, or other educational organizations. This flexibility enables cap-exempt employers to hire foreign professionals year-round.

Cap-Exempt vs. Cap-Subject H-1B: What’s the Difference?

Understanding the differences between cap-exempt and cap-subject H-1Bs is crucial for both employers and foreign workers. Here’s a breakdown of how they compare:Cap-exempt H-1Bs offer critical advantages, like flexibility in hiring timelines and freedom from the lottery process, making them highly attractive for eligible organizations and foreign nationals who might otherwise face the lottery's uncertainty.

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Who is Eligible for a Cap-Exempt H-1B?

Not all employers qualify to sponsor a cap-exempt H-1B. Specific eligibility is determined by the type of organization and, in some cases, by the nature of the work performed. Qualified employers include:

1. Institutions of Higher Education: U.S. universities and colleges, including community colleges, qualify as cap-exempt employers and can sponsor H-1Bs without lottery restrictions.
2. Nonprofit Organizations Affiliated with Higher Education Institutions: Nonprofit entities with affiliations to higher education institutions, like research centers, hospitals, and foundations, also qualify. This affiliation often involves educational and research collaborations.
3. Nonprofit Research Organizations
   These are defined as tax-exempt organizations under the Internal Revenue Code Section 501(c)(3), which are primarily engaged in basic or applied research. To qualify, these organizations must demonstrate that their primary mission aligns with advancing knowledge or contributing to public welfare through research.
4. Government Research Organizations
   These are federal, state, or local government entities whose primary purpose is conducting research. The law recognizes such organizations as instrumental in advancing the public interest through research and innovation. Examples include federally funded research and development centers (FFRDCs) and government laboratories.

For a deep dive into the statutory basis and definitions, check out our deep dive into the legal foundations of H-1B cap-exempt organizations.

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Key Benefits of a Cap-Exempt H-1B Visa

Cap-exempt H-1Bs provide many benefits to foreign nationals and the companies that employ them:

1. No Lottery Restrictions: Cap-exempt H-1Bs are not subject to the annual 80,000 H-1B lottery cap, reducing the risk of immigration instability for foreign nationals and employee turnover for employers.
2. Flexibility of Visa Filing Timeline: Applications can be filed at any time year-round, not just during the annual lottery season. Cap-exempt H-1Bs provide a more stable and predictable path for foreign workers and employers.
3. A Backup Plan for Cap-Subject Employers: Employers who couldn’t secure an H-1B for their employees due to the lottery can leverage cap-exempt pathways as an alternative to retain their talent. This can be done through part-time, concurrent employment with a cap-exempt employer.

For example, through The Build Fellowship model, foreign nationals can spend 5 hours a week part-time leading university students in industry projects, qualifying them for a cap-exempt H-1B, allowing their primary employer to file a concurrent H-1B without the lottery.

Application Process for a Cap-Exempt H-1B Visa

The application process for a cap-exempt H-1B closely resembles that of a cap-subject H-1B. Here’s a general overview of the steps involved:

1. Determine Eligibility: The sponsoring employer must confirm its cap-exempt status.
2. File a Labor Condition Application (LCA): The employer files an LCA with the Department of Labor to confirm wage and workplace conditions.
3. File Form I-129: After the LCA is approved, the employer files Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS).
   
   To establish cap-exempt eligibility, the employer must complete the “H-1B Data Collection and Filing Fee Exemption Supplement” included with the I-129. In particular, the employer should check the appropriate boxes under the “Cap Exemption” section of this supplement. Supporting documentation—such as accreditation materials or evidence of the organization’s nonprofit research status—should be included to substantiate these selections.
   
   
4. Processing and Approval: USCIS processes the petition and, if approved, the foreign national is authorized to work under cap-exempt H-1B status. Premium processing is often available, accelerating the timeline.

With no lottery limitations, the timeline for cap-exempt H-1Bs is generally shorter and more flexible than for cap-subject petitions.

How The Build Fellowship Provides a Cap-Exempt H-1B Pathway

For those in cap-subject roles who are concerned about their visa options, The Build Fellowship offers a unique way to secure cap-exempt status. Here’s how it works:

• Fellowship Projects: Fellows work part-time leading students at universities through industry projects for 5 hours a week. This role meets cap-exempt requirements and qualifies them for a cap-exempt H-1B. 
• Concurrent Cap-Exempt H-1B Filing: The fellowship’s cap-exempt status allows fellows’ primary employers to file a concurrent H-1B petition, so fellows can continue their full-time roles without disruption.

This dual employment model offers a powerful solution for foreign professionals, making it possible to stay in the U.S. workforce and contribute meaningfully without the limitations of the H-1B cap.

Frequently Asked Questions

1. Can I switch from a cap-exempt to a cap-subject employer? Yes, but you would need to go through the H-1B lottery for cap-subject employment. To maintain continuous work authorization, you could hold concurrent employment with a cap-exempt employer until you secure a cap-subject H-1B.

2. Is there a limit on how many hours I can work under a cap-exempt H-1B? Cap-exempt H-1Bs allow part-time or full-time work, depending on the terms of employment. If working with both a cap-exempt and cap-subject employer, the work hours can vary per employer guidelines.

3. Can a cap-exempt H-1B employer sponsor my green card? Yes, cap-exempt employers can sponsor green cards, following the same process as other H-1B employers. However, moving to a different employer during the green card process could impact sponsorship.

4. What happens if I want to work with multiple cap-subject employers? This would require each employer to file a separate H-1B petition. Only cap-exempt employers can bypass the lottery; thus, concurrent employment with multiple cap-subject employers wouldn’t eliminate the lottery requirement.

Conclusion

The cap-exempt H-1B visa offers a valuable pathway for foreign professionals seeking stable, long-term work authorization in the U.S. For those in roles that qualify, it provides an avenue free from lottery restrictions and annual caps. And through programs like The Build Fellowship, foreign nationals have the opportunity to gain cap-exempt status through part-time work, enabling continued employment without the uncertainty of the lottery process.

If you’re exploring your options for maintaining employment in the U.S., consider the potential of cap-exempt H-1B opportunities—and look into how programs like The Build Fellowship, can open doors to this alternative pathway.

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