Must-Know Facts About H-1B Cap Exemption and Recent Updates
Breaking News: President Trump has introduced a $100,000 filing fee for new H-1B petitions. This major development may impact both employers and foreign professionals considering H-1B sponsorship. Certain exemptions apply, so it is critical to understand the latest updates and strategies for navigating this change.
H-1B cap-exempt organizations have the ability to sponsor H-1B visas year-round, without going through the highly competitive H-1B lottery process. These organizations include:
- Institutions of Higher Education
- Nonprofit Organizations Affiliated with Higher Education Institutions
- Government Research Organizations
- Nonprofit Research Organizations
Since cap-exempt employers are not limited by the annual quota, they can file H-1B petitions at any time. With demand for cap-subject H-1B visas increasing, understanding cap-exempt options is more important than ever.
In short, foreign nationals may secure employment with qualifying nonprofits, research institutions, or universities to obtain H-1B sponsorship outside of the lottery system.
This comprehensive guide explains what H-1B cap exemption means, eligibility requirements for organizations and employees, how to identify cap-exempt jobs, and why working with immigration attorneys at Green Card Link can be the key to successfully navigating this complex process.
➡ Questions about H-1B cap exemption? Schedule a consultation with an experienced immigration attorney at Green Card Link today.
Latest News and Updates on H-1B Visas
- The H-1B lottery registration fee increased to $215 in April 2024.
- The updated Form I-129 took effect on January 17, 2025.
- The 2025 H-1B petition filing window closed on June 30, 2025. Employers and applicants should prepare early for next year.
- Breaking Update: President Trump has officially signed a proclamation imposing a $100,000 fee for new H-1B petitions. While certain exceptions apply, this policy change could significantly impact employers and workers alike.
For personalized guidance, immigration attorneys at Green Card Link can help you plan ahead.
What Is H-1B Cap Exemption?
H-1B cap exemption means that certain employers and job positions are not subject to the annual H-1B visa cap and can file petitions year-round. This provides a valuable alternative for foreign professionals who want to work in the U.S. without waiting for the limited H-1B lottery.
Which Organizations Qualify for H-1B Cap Exemption?
Cap-exempt status applies to:
- Institutions of Higher Education: Accredited colleges and universities that meet USCIS criteria.
- Nonprofit Organizations Affiliated with Higher Education: Nonprofits formally tied to higher education institutions.
- Government Research Organizations: Federal entities or organizations with agreements to conduct research on behalf of U.S. agencies.
- Nonprofit Research Organizations: Entities primarily engaged in research as defined by the Immigration and Nationality Act (INA).
Eligibility Criteria for Nonprofit Organizations
For nonprofit entities to qualify as H-1B cap-exempt, they must:
- Be associated with a higher education institution or government research body.
- Operate as a nonprofit entity under IRS designations 501(c)(3), (c)(4), or (c)(6).
- Maintain IRS approval as a tax-exempt organization for educational or research purposes.
- Demonstrate a qualifying relationship through ownership, shared board members, or formal affiliation.
H-1B Visa Requirements for Employers and Employees
According to the U.S. Department of Labor, exempt H-1B employees must meet strict requirements, such as:
- Minimum Annual Salary of $60,000: Paid in actual wages (“cash in hand”), with prorated amounts for partial-year employment.
- Advanced Degree Requirement: A master’s degree or higher (or equivalent) in a relevant field from an accredited institution.
Note: Work experience alone does not substitute for a degree under exemption rules.
Real-World Example: Cap-Exempt Employment through Collaboration
Consider the case of a foreign worker placed at a university research facility. If a for-profit company files the petition but demonstrates that the employee’s work directly supports the mission of the cap-exempt institution, the petition may still qualify as exempt. This allows talented professionals to work in research-focused roles without competing in the H-1B lottery.
Why Work with Green Card Link?
Consider the case of a foreign worker placed at a university research facility. If a for-profit company files the petition but demonstrates that the employee’s work directly supports the mission of the cap-exempt institution, the petition may still qualify as exempt. This allows talented professionals to work in research-focused roles without competing in the H-1B lottery.
The H-1B process—especially cap exemption—can be confusing and requires precise evidence and legal strategy. Immigration attorneys at Green Card Link can:
- Identify whether an employer qualifies as cap-exempt.
- Guide applicants through USCIS documentation requirements.
- Ensure compliance with Department of Labor wage rules.
- Develop strategies to strengthen your H-1B petition.
➡ Take action today. Schedule a consultation with immigration attorneys at Green Card Link and secure your path toward working in the United States.
How to Apply for H-1B Cap-Exempt Visas
Unlike the regular H-1B visa process, H-1B cap-exempt applications can be filed anytime during the year. There is no annual lottery or strict filing window, giving applicants and employers greater flexibility. This makes the H-1B cap-exempt pathway especially attractive for foreign professionals who qualify.
Step-by-Step Guide: Applying for an H-1B Cap-Exempt Job
Unlike the regular H-1B visa process, H-1B cap-exempt applications can be filed anytime during the year. There is no annual lottery or strict filing window, giving applicants and employers greater flexibility. This makes the H-1B cap-exempt pathway especially attractive for foreign professionals who qualify.
If you are considering an H-1B cap-exempt visa, here are the essential steps to follow:
- Find a Qualifying Employer
Eligible cap-exempt employers include non-profit organizations, accredited research institutions, and certain government entities. - Secure a Relevant Job Offer
The offered position must be directly related to your educational background or degree. - Gather Documentation
Work with your employer to compile required evidence for the H-1B petition (Form I-129). This typically includes:- A valid passport
- Academic transcripts and degrees
- A detailed CV outlining your skills, experience, and qualifications
- A valid passport
- Employer Files Form I-129
The employer submits Form I-129 (Petition for a Nonimmigrant Worker) to USCIS, proving the position is cap-exempt and meets H-1B eligibility criteria. - USCIS Review
USCIS evaluates the petition and issues a decision. - Start Work Immediately
Once approved, you may begin employment right away—no need to wait until the next fiscal year.
👉 For personalized guidance and stronger petition approval, immigration attorneys at Green Card Link can provide professional support throughout the H-1B cap-exempt process.
H-1B Cap-Exempt Processing Time
Processing times vary, but on average, the timeline is around seven months. This period usually covers:
- Certification of the Labor Condition Application by the Department of Labor
- USCIS petition review and adjudication
Actual processing can be faster or slower depending on case specifics and government workload.
How to Check H-1B Cap-Exempt Processing Time
Applicants and employers should regularly consult the USCIS Processing Time Tool. By selecting the appropriate form type and service center, you can see the most accurate estimate for your case. Because processing times fluctuate, checking periodically is strongly advised.
How to Check H-1B Cap-Exempt Processing Time
One of the greatest benefits of the cap-exempt process is avoiding the H-1B lottery.
- Cap-Subject H-1B:
- Registration in February/March
- Lottery selection
- Petition filing if chosen
- Work start date often delayed until October 1
- Average wait time: up to 9 months
- Registration in February/March
- Cap-Exempt H-1B:
- Year-round filing
- Immediate eligibility to work after approval
- No lottery, no annual deadlines
- Year-round filing
This flexibility is a major advantage for both employers and foreign professionals.
Examples of H-1B Cap-Exempt Employers
Below are examples of cap-exempt institutions (always verify current eligibility):
Universities and Higher Education
Non-Profits Affiliated with Education or Research
Government Research Organizations
Finding H-1B Cap-Exempt Jobs
To search for cap-exempt employers:
- MyVisaJobs.com – Filter by “cap-exempt”
- USCIS H-1B Employer Data Hub – Track historical employer filings
- HigherEdJobs – Search for positions in academia and research
- Glassdoor / Indeed – Use keywords like “cap-exempt H-1B” or “research institution”
- NGO Job Boards – Opportunities at global and U.S.-based nonprofits
⚠️ Always verify the employer’s current eligibility. For accurate case evaluation, consult with immigration attorneys at Green Card Link.
Premium Processing for H-1B Cap-Exempt Petitions
USCIS offers premium processing for $2,500, guaranteeing a 15-day review period. Within this time, USCIS will:
- Approve the petition
- Deny the petition
- Issue a Notice of Intent to Deny
- Or request additional evidence (RFE)
If USCIS issues an RFE, a new 15-day window begins upon receipt of your response.
Validity of Cap-Exempt H-1B Visas
An H-1B cap-exempt visa is valid for up to six years. If you previously held H-1B status but did not use all six years, you may still be eligible to file cap-exempt petitions for the remaining time.
- Example 1: If you used only three years of H-1B status in the past, you may apply again and use the remaining three years.
- Example 2: If you already used the full six years, you must either leave the U.S. for one year to reset eligibility or apply through the regular H-1B lottery.
For complex scenarios like these, the safest approach is to seek advice from immigration attorneys at Green Card Link, who specialize in H-1B cap-exempt petitions.
H-1B Cap-Exempt Transfers and Portability: What You Need to Know
Understanding the H-1B Transfer Process
An H-1B transfer allows individuals who currently hold H-1B status—or have previously held it—to move to a different employer. In most cases, U.S. Citizenship and Immigration Services (USCIS) processing for an H-1B transfer takes between four to eight months.
The good news is that as an H-1B visa holder, you do not need permission from your former employer to make the switch. However, you must comply with any non-compete clauses or contractual obligations. For a transfer to proceed, your new employer must file an H-1B transfer petition with USCIS.
Key H-1B Transfer Requirements
- Employment must begin within 30 days of the date on the H-1B transfer petition.
- You can legally start working the day USCIS issues the receipt notice.
- If you have a gap in employment, premium processing is strongly recommended.
- Pay stubs are typically required as proof of employment, though alternative documents (such as a letter of leave from your employer) may also be acceptable.
For personalized guidance with filing H-1B petitions and transfers, consult an immigration attorney at Green Card Link.
Transfers Between Cap-Exempt and Cap-Subject Employers
Many H-1B holders wonder if they can transfer from a cap-exempt employer (such as a university or nonprofit research organization) to a cap-subject employer (a private company). While this may sound like a convenient loophole, USCIS rules are clear:
- If you are employed by a cap-exempt organization and wish to transfer to a cap-subject employer, your new employer must enter you into the H-1B lottery.
- You will no longer be treated as cap-exempt unless you return to a qualifying nonprofit or research institution.
- Only if USCIS selects your petition through the lottery can you begin employment with the new cap-subject employer.
On the other hand, if you are transferring from one cap-exempt employer to another, you may do so freely and begin work as soon as USCIS receives the filing.
The H-1B Portability Rule
The H-1B Portability Rule allows eligible workers to begin employment with a new employer as soon as USCIS receives the transfer petition—without waiting for full approval.
According to the U.S. Department of Labor (DOL), portability provisions apply when:
- The new employer files a non-frivolous petition (Form I-129) before your current H-1B status expires.
- The petition is supported by a valid Labor Condition Application (LCA).
This rule protects workers by ensuring they remain in valid status while changing employers.
Because portability rules can be complex, it’s always recommended to work with an immigration attorney at Green Card Link before filing.
Why Employers and Employees Should Seek Legal Support
Both employers and employees benefit from professional immigration guidance when dealing with H-1B petitions. An immigration attorney at Green Card Link can help by:
For Employers:
- Determining cap-exempt eligibility for your organization.
- Preparing and filing USCIS-compliant petitions.
- Responding to Requests for Evidence (RFEs) effectively.
For Employees:
- Confirming that your employer truly qualifies as cap-exempt.
- Advising on transfer procedures and documentation.
- Exploring alternative visa options if necessary.
Frequently Asked Questions About H-1B Cap-Exempt Transfers
What’s the difference between cap and cap-exempt?
- Cap-subject: Requires participation in the H-1B lottery and is subject to the annual cap (65,000 general + 20,000 advanced degree slots).
- Cap-exempt: Not subject to the annual lottery, typically reserved for nonprofit organizations, higher education institutions, or research organizations.
Can J-1 exchange visitors apply for H-1B status?
Yes, but many J-1 visitors must complete a two-year home residency requirement unless USCIS grants a waiver.
Do cap-exempt H-1B workers have the same protections?
Yes. All H-1B employees, whether cap-subject or cap-exempt, are entitled to protections such as fair wages, whistleblower protections, and compliance with labor regulations.
What is considered a “specialty occupation”?
H-1B status applies to positions requiring at least a bachelor’s degree or higher in a specialized field such as engineering, IT, science, or finance.
Can dependents apply for visas?
Yes. Spouses and children under 21 may apply for H-4 visas. In some cases, H-4 visa holders may also obtain work authorization.
What is the minimum salary for a cap-exempt H-1B?
The salary must meet or exceed the prevailing wage set by the Department of Labor, with a statutory minimum of $60,000 per year (though actual requirements often exceed this).
What is the minimum salary for a cap-exempt H-1B?
Yes. Thanks to the portability rule, you can change employers as long as your new employer files the transfer petition.
Path from H-1B Cap-Exempt to Green Card
Cap-exempt H-1B holders can pursue permanent residency through employment sponsorship. The process generally involves:
- PERM Labor Certification (unless exempted).
- Form I-140 petition by the employer.
- Waiting for your priority date to become current.
- Filing Form I-485 (Adjustment of Status) or consular processing abroad.
Since this process can be complex, an immigration attorney at Green Card Link can provide tailored strategies to help secure your green card.
Final Thoughts
The H-1B transfer and cap-exemption process involves complex rules, eligibility requirements, and timing considerations. Mistakes in filing could cost you valuable time—or worse, your legal status in the United States. By consulting with experienced immigration attorneys at Green Card Link, both employers and employees can confidently navigate the system and achieve successful outcomes.