H1B Cap Exemption Explained

In recent years, the H1B visa became notorious for its annual lottery. However, it is less known that there are some instances where applicants can benefit from an H1B cap exemption. As you may already know, the cap for the number of H1B visas is 65,000 per year plus another 20,000 for people with advanced degrees. When the number of applications exceeds the cap, the USCIS runs a random selection process to select the applications it will process. In certain cases, H1B applicants don’t have to apply by the USCIS’ deadline and be subject to the cap. These instances are either the result of the applicant’s particular situation or the nature of the employer.

Applicant H1B Cap Exemption

H1B applicants can be cap-exempt if they satisfy one of these requirements:

  • They were subject to the cap in the past 6 years and have successfully obtained the H1B visa and are either:
    • seeking an H1B transfer to a cap-subject employer.
    • or requesting an extension after 3 years.
    • or granted an exceptional extension after the 6 years limit.
  • They are applying from abroad and have been under H1B status while living in the US in the past six years.

Employer H1B Cap Exemption

In order for an employer to petition for an H1B cap exemption, they should fall into one of these categories:

  • A Higher education institution.
  • A Non-profit entity associated with or related to a higher education institution.
  • A Non-profit or government research organization.

The USCIS published┬áspecific definitions for each of the categories. Therefore, the employer has to match the USCIS’s description to be exempt from the H1B cap.

Employers who don’t fall in any of the categories can still file an cap-exempt H1B petition for employees who will be working on-site at cap-exempt entities. However, the employer should provide evidence that the employee will be performing tasks similar to those performed by the employees of the cap-exempt entity.

Cap-exempt Transfers

All H1B holders can transfer to cap-exempt employers without restrictions. However, the reverse is not possible. If an individual employee of a cap-exempt entity wishes to transfer to a cap-subject employer, they will have to file a new H1B petition and be subject to the annual cap.