H-1B Cap Exempt GuidePresident George H.W. Bush launched the H1B visa program in the year 1990 to provide the USA with highly proficient and skilled labor without affecting the employment of indigenous US workers. Having a complete understanding of H1B visas is pivotal for foreign professionals to avail the opportunities offered by the U.S. government.

It’s also important to note that while the H-1B lottery process can be a bit tedious, some petitioners can dodge it only by falling into the exemption category demarcated by USCIS. To fulfill the criteria is the dream of every petitioner but it’s tricky. Therefore, it’s recommended that you understand every bit of the regulations just to ensure your eligibility. An immigration attorney can guide you through the whole rigorous process better. Need one? Contact us here.

There are two caps under the H1B visa- master’s cap and regular cap. The Master’s cap comprises 20,000 slots accessible to those holding advanced degrees, such as a master’s degree or equivalent or higher. In case your petition is rejected in the master’s cap, it’ll be resubmitted to the regular cap that comprises 65,000 slots. Therefore, workers possessing advanced degrees have a higher possibility of being considered in the first instance itself.

However, there’s a way to avoid this H1B cap, that is, to occupy a job for an institute of higher education, a non-profit organization that is in alliance with a government research organization. These employers are exempt from the cap, so they can file H-1B petitions at any time of the year.

Moreover, you’ve already been counted against the cap, all successive petitions will be regarded as cap-exempt.

What Does H-1B Cap-Exempt Mean?

The term “H-1B cap-exempt” refers to the situation where an employer is not bound by the annual cap that is imposed on H-1B petitions, and hence the petitioner is not subject to the cap. On the other hand, the term “cap-subject” implies that the employer is not cap-exempt. In such cases, H-1B visas are specifically allotted to “cap-subject” and advanced degree petitioners.

Under the regular H-1B visa cap, 65,000 petitions are dedicated to foreign workers possessing the requisite skills and qualifications. Additionally, USCIS allots 20,000 petitions to individuals holding advanced degrees at a master’s level or beyond. However, in certain instances, H-1B applications can be filed without having to go through the H-1B cap.

The following are a few exemption categories:

H1B Cap Exempt Higher Education Institution:

To acquire eligibility as a higher education institution, the organization must:

  • admit students having a certificate of graduation from a school providing secondary education.
  • be legally authorized within such State to offer a program of education beyond secondary education.
  • be either public or nonprofit.
  • possess a legitimate license to offer education beyond higher education.
  • award either a bachelor’s degree for its educational programs or a degree that is acceptable to take admission for a graduate or professional degree program. If the institution fails to provide a bachelor’s degree, it should provide a minimum of a two-year program that is an acceptable education accreditation for such a degree.

Here is list of H1B Cap exempt Institute list: https://h1bvisajobs.com/top-200-h1b-cap-exempt-institutions-of-higher-education/

Nonprofit Entity Affiliated with Higher Education Institutions:

It means that it doesn’t take commissions to earn a profit from work. The association between non-profit organizations and higher education institution is ensured by shared board control or ownership.

The organization acts as a branch, member, or subsidiary. Nonprofit refers to the tax-exempt organization under the Internal Revenue Code, 1986, section 501(c)(3), (c)(4) or (c)(6), 26 U.S.C. 501(c)(3), (c)(4) or (c)(6), and is exempted from paying taxes for research or educational purposes by the Internal Revenue Service.

Nonprofit Research Organization or Governmental Research Organization:

A nonprofit research organization refers to those organization that indulges in basic or applied research. Both are different forms of research. Basic research aims at gaining an understanding of issues without applying the mind. Applied research aims at acquiring knowledge or new scientific knowledge through subtle investigations for commercial objectives.

A government research organization is similar to a nonprofit organization. It’s mandatory that the organization must be associated with the government and involved in either basic or applied research.

A for-profit company seeking to hire an individual for specialty occupation services to be provided to an approved non-profit

Are you wondering whether you’re qualified for the cap-exempt H-1B? Contact an immigration attorney to book a free evaluation.

Why should I apply for a job under cap exemption?

Are you a foreign professional who missed the chance of getting selected for an H1B quota?

Don’t Worry! You must not wait for the next year to apply for the job because you can apply for similar jobs in cap-exempt institutions such as government research organizations.

Here, the work you’re seeking may not be similar to normal H1B jobs but highly related to your field. The task left for you, subsequently, is to discover businesses or institutions that come under the cap exemption.

How to Apply for H-1B Cap-Exempt

The process of filing cap-exempt visa applications is not bound by specific application windows. As a result, interested candidates can file such applications at any point during the calendar year without any filing deadline or limit to the number of petitions accepted. After a foreign professional has received a job offer and demonstrated that the job is related to their educational qualifications and professional expertise, the employer must submit the H-1B cap-exempt petition on their behalf.

The employer’s application must meet the criteria for cap-exemption and demonstrate that the job is qualified as cap-exempt. Upon submission, the candidate must wait for USCIS to approve the application. Once the application is approved, the candidate can start working for the employer at any time after obtaining a valid visa.

What is the H-1B Cap-Exempt Processing Time?

The processing time for H-1B cap-exempt applications varies depending on the case and can take an average of six months. This duration encompasses the time required by the Department of Labor for the prevailing wage determination (if required), the Labor Condition Application (L.C.A.), and USCIS processing, which may take six months or longer. One can verify USCIS processing times online.

One of the advantages of the H-1B cap-exempt processing time is that it’s not limited by the H-1B lottery and season, which can be a constraint for regular processing time. For regular H-1B candidates, the majority of February and March are spent registering for the lottery, waiting to hear if they’ve been selected, filing petitions if they are chosen, and, if approved, they have to wait until October 1 to begin working. H-1B cap-exempt jobs, on the other hand, can employ foreign workers throughout the year, and these employees can begin working at any time.

H-1B 2023-24 Cap-Exempt Fees

Below is the list of fees involved in the whole process:

Attorney Fees for H-1B 2023-24 Lottery

It’s important to note that the lottery stages of the H-1B petition process are tiered, and not all companies will be selected by USCIS to file a complete petition. For your convenience, we have provided the attorney fees charged by H1Bvisajobs.com for each tier.

For Tier 1, the fee is $550, which covers the initial registration process, including all preliminary case analyses required for filing the case. For Tier 2, the fee is $1,900, to be due if the USCIS selects the case in the lottery for filing. This tier includes all form/support letter preparation, as well as case filing within the timeframe. Finally, for Tier 3, the cost of a Request for Evidence (R.F.E.) response, should one be issued on the case, ranges from $500-$1,500, depending on the case’s circumstances.

Reiterating the fact that all petitioners can finish the initial registration process themselves. However, it should be noted that if the registration is done by the petitioner and not by an attorney, USCIS will deny the petition. After USCIS chooses your position in the lottery, your company may retain the services of a H1Bvisajobs.com attorney to complete the process. The cost for this service is a flat fee of $2,300, which includes all responses on your behalf for any R.F.E.s requested by USCIS and any H-4 applications. The cost of individual R.F.E. ranges between $500-$1,600, depending on the circumstances of the case.


The H-1B application, lottery, cap-exempt processes are all rigorous and demand professional expertise.

To unburden you, H1Bvisajobs.com offers comprehensive immigration services, facilitating individuals in acquiring an H1B visa for the attainment of US citizenship.

Our immigration services encompass both online and offline consultations with our experienced immigration attorneys, who possess an in-depth understanding of the subject matter. Irrespective of your location, rest assured that you’ll receive immigration advice from our team of US-based immigration attorneys.

Frequently Asked Questions

Here’s the list of answers to the frequently asked questions related to the topic:

Do I receive protections under the H-1B program as an H-1B cap-exempt worker?

Definitely. Every H-1B immigrant gets protections under H-1B program including the provisions as they associate with regulations, wages, whistleblower protections and so on. You better consult an experienced immigration attorney if you wish to inquire about your rights under federal immigration laws.

Are there advantages for an employer to hire an exempt H-1B petitioner?

The U.S. Department of Labor Fact Sheet #62Q highlights, “H-1B-dependent and willful violator employers which employ only exempt H-1B workers on a Labor Condition Application (LCA) are relieved from the additional obligations with which they would otherwise be required to comply: non-displacement, recruitment, and hiring.” Please note that the particular advantaged differs on a case-by-case basis.

Can my wife/spouse and children get a dependent visa after I’m approved on H-1B?

According to law, an H-1B holder’s spouse and children under 21 years old can apply for H-4 status. H-4 holders too earn the ability to work, in certain cases.

Can I file the H-1B application myself if I don’t have an employer yet?

No. You can’t file the H-1B application. The power vest only on the U.S. employer who’ll file it on your behalf.

Do cap-exempt employers pay the ACWIA fee for H-1B petitions?

No, cap-exempt employers aren’t supposed to pay the ACWIA fee for H-1B petitions. They must pay the ACWIA education and training fee.

As per the guidelines laid out by the United States Citizenship and Immigration Services (USCIS), it has been stated that the ACWIA fee need not be paid in certain scenarios.

These include situations wherein a petitioner files a second or subsequent request for an extension of stay with the same employer; when a petitioner files an amended petition that does not seek an extension of the petition’s validity; or when USCIS makes an error and the petitioner files a petition to rectify the same. However, it must be noted that in order for a petitioner to be considered exempt from the ACWIA fee, the petition submitted in response to the USCIS error may not contain any requests to extend the validity unless the error pertains to the validity dates.

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