Transitioning from H-1B Cap-Exempt to Cap-Subject Employers
At Green Card Link, its immigration attorneys frequently receive questions from professionals currently employed with H-1B cap-exempt organizations who wish to move to cap-subject employers. To provide clarity, this article explains the process and key rules surrounding a transition from H-1B cap-exempt status to H-1B cap-subject employment, particularly for individuals who have never worked for a cap-subject employer before.
H-1B Portability and the Cap-Subject Requirement
Under U.S. immigration law, H-1B portability allows certain job changes, but moving from a cap-exempt to a cap-subject employer requires filing a cap-subject H-1B petition during the lottery. For employees at cap-exempt institutions (such as universities, nonprofit organizations, or research entities), the lottery requirement was never part of their original process. Since they were never counted under the H-1B cap, a transfer to a cap-subject employer subjects them to stricter rules, limited visa availability, and the competitive annual lottery system.
Understanding the H-1B Cap and the Lottery
Each year, the number of H-1B visas is extremely limited compared to the demand. Only 20,000 visas are set aside under the master’s cap (for advanced U.S. degree holders). If more than 20,000 petitions are filed within the first five business days, USCIS conducts a random lottery to select qualifying cases before moving on to the regular cap, which offers 65,000 visas for those with a U.S. bachelor’s degree or its equivalent.
The Master’s Cap Advantage
Applicants with a qualifying U.S. master’s degree enjoy what is often described as “two bites at the apple.” If their petition is not chosen in the master’s cap selection, it is automatically entered into the regular cap lottery.
To qualify for this advanced degree exemption, the degree must come from a U.S. institution that is both accredited and nonprofit or public. If the degree is from a for-profit institution, USCIS will deny the petition even if it is selected. Applicants should also confirm that their school’s accreditation was not later revoked, as this could make them ineligible for the master’s cap benefit.
The Regular Cap
The regular cap is available to applicants holding a U.S. bachelor’s degree or a foreign equivalent. Those with advanced degrees earned abroad are also counted under this category.
Educational Evaluation for Foreign Degrees
Applicants with foreign degrees must obtain an educational evaluation from a recognized credential evaluation agency. This assessment confirms that their academic background qualifies them for the specialty occupation. Evaluations are usually completed within a week and should be included with the initial petition or provided in response to a USCIS Request for Evidence (RFE).
Premium Processing: What It Does—and Doesn’t Do
Some individuals mistakenly believe that requesting premium processing improves their chances of being selected in the lottery. This is not true. Premium processing only speeds up USCIS’s decision-making once a petition has been chosen. For an additional $1,440 fee, USCIS guarantees a response within 15 calendar days.
If selected, USCIS sends an electronic receipt and hard copy notice to the employer. If no notice is received within a reasonable time, the case was not chosen. For petitions filed under regular processing, hard copy receipts are typically issued within two months of filing.
Importantly, employees whose cap-subject petitions are approved can only begin work on October 1st of that fiscal year.
Concurrent H-1B Employment
In certain situations, it is possible to hold concurrent employment with both a cap-exempt and a cap-subject employer. To do so, the employee must continue part-time work with the cap-exempt employer while the cap-subject employer files a petition for additional part-time employment. If approved, the worker may serve both employers simultaneously. However, if the cap-exempt employment ends, the concurrent cap-subject H-1B authorization will also terminate.
How Green Card Link Can Help
The rules governing H-1B cap-exempt and cap-subject petitions can be complex and overwhelming. At Green Card Link, its immigration attorneys provide personalized guidance to help you navigate every step of the transition process. Whether you are preparing your first cap-subject petition or considering concurrent employment, having experienced legal support is critical to your success.
If you are interested in exploring your eligibility or need assistance with the H-1B transfer process, contact Green Card Link today to schedule a consultation with an immigration attorney at Green Card Link.