Cap Exempt H-1B: How It Works, Who Qualifies, & How to Apply
If you're looking for a way to apply for an H-1B visa without going through the annual lottery, you might be wondering about the cap exempt H-1B option.
Whether you're an employer trying to hire international talent or a foreign worker exploring visa pathways, understanding H-1B cap exempt rules may open up new possibilities.
This guide breaks down who qualifies, which jobs and employers are eligible, and what the process looks like.
SCHEDULE A CONSULTATIONWhat Is a Cap Exempt H-1B?
A cap-exempt H‑1B petition is the same H‑1B classification, but it is not counted against the annual numerical cap. It allows certain employers—such as universities, nonprofit research institutions, government research organizations, and nonprofit entities related to or affiliated with universities—to sponsor foreign workers without being subject to the annual H-1B cap or lottery.
These employers can file petitions at any time of year, offering more flexibility than traditional cap-subject H-1B visas.
The job must still qualify as a specialty occupation, typically requiring a bachelor’s degree or higher in a specific field.
But because the employer is considered cap exempt, the petition can move forward regardless of the yearly quota.
The standard H-1B visa process is capped each year — meaning there's a limit on how many visas can be issued.
Currently, that cap is 65,000, with an additional 20,000 for individuals with advanced degrees from U.S. institutions.
What Makes an H-1B Job Cap Exempt?
To qualify for a cap exempt H-1B visa, the job must be offered by a cap exempt employer.
These typically include:
- Higher education institutions (e.g., universities)
- Nonprofit entities affiliated with a college or university
- Nonprofit research organizations
- Governmental research organizations
The job itself must also meet the H-1B requirements, meaning it generally needs to be a specialty occupation that requires at least a bachelor's degree in a specific field.
Examples of H-1B Cap Exempt Employers
If you're wondering where to look or who might qualify as a cap exempt employer, here are a few examples:
- Universities and community colleges
- Teaching hospitals affiliated with medical schools
- Nonprofit research institutions like SRI International or RAND Corporation
- Organizations (including some private companies) contracting with cap-exempt institutions (such as universities, affiliated nonprofits, or research organizations) for research or education-related roles, where (a) the beneficiary will work at the cap-exempt institution and (b) the duties directly and predominantly further the institution’s fundamental mission
Cap Exempt vs Cap Subject H-1B Visas
Understanding the difference between cap exempt and cap subject can help you decide which route makes sense for your situation.
If avoiding the H-1B visa lottery is a priority, finding or partnering with a cap exempt employer may be a smart route.
Can You Move from Cap Exempt to Cap Subject?
Yes, but it’s not always simple.
If you're currently working for a cap exempt employer and want to switch to a private company (cap subject), you’ll likely need to go through the regular H-1B lottery process.
On the other hand, some workers hold concurrent H-1Bs — working part-time for a cap exempt employer and part-time for a cap subject one.
This strategy can provide more flexibility, but comes with specific legal requirements and timing considerations.
How to Apply for a Cap Exempt H-1B Visa
The application process for a cap exempt H-1B visa is similar to the cap subject process, but without the timing restrictions.
Here’s what it generally involves:
- Job offer from a qualifying cap exempt employer
- Labor Condition Application (LCA) submitted to the Department of Labor
- H-1B petition (Form I-129) filed with USCIS
- Approval and visa stamping (if applying from outside the U.S.)
Because cap exempt H-1B visas are not tied to the lottery schedule, employers can submit petitions at any point during the year, depending on business and staffing needs.
How Quijano Law Assists with Cap Exempt H-1B Visas
Whether you're an organization hiring international employees or a professional seeking work with a cap exempt H-1B employer, navigating the visa process requires careful planning and may benefit from H-1B visa lawyers.
At Quijano Law, we work with:
- Nonprofits and universities looking to sponsor foreign workers
- Professionals exploring cap exempt H-1B visa jobs in education, research, or healthcare
- Employers needing guidance on dual employment or concurrent H-1B filings
Our goal is to help you understand the process and what to expect based on your situation.
If you have questions about whether your job or employer qualifies, we're here to help you find clarity.
SCHEDULE A CONSULTATIONFAQs About Cap Exempt H-1B Visas
What is a cap exempt H-1B employer?
Cap exempt employers include universities, nonprofit research organizations, and government research institutions that are not subject to the H-1B annual cap.
What types of jobs qualify for H-1B cap exemption?
Any specialty‑occupation role (one that normally requires at least a specific bachelor’s‑level degree) offered by a qualifying employer can be cap-exempt.
Can private companies offer cap exempt H-1Bs?
Not usually, but if the job is performed at a nonprofit or academic institution and supports its mission, it may qualify.
Is a cap exempt H-1B visa easier to get?
There’s no lottery, but the position must still meet all regular H-1B criteria and be sponsored by a qualifying employer.
Can I later switch to a cap subject H-1B job?
Yes, but you'd need to go through the H-1B cap process unless you maintain concurrent employment with a cap exempt employer.
What is the cap on H-1B cap-exempt visas?
Cap-exempt H-1B visas are not subject to the annual numerical cap that applies to regular H-1B visas. This means eligible employers can file petitions at any time of year without being limited by the 65,000 general cap or the 20,000 U.S. advanced degree exemption.
What is the salary for H-1B cap-exempt visas?
There is no fixed salary unique to cap-exempt H-1Bs. However, employers must still comply with Department of Labor wage requirements, meaning the H-1B salary requirement must meet or exceed the prevailing wage for the specific occupation and location.
Is the H-1B visa cap-exempt after 6 years with I-140 approved?
An H-1B visa worker with an approved I-140 may become eligible for extensions beyond the 6-year limit, but that doesn't automatically make the visa cap-exempt. Cap exemption depends on the employer, not just the individual’s status or I-140 approval.
What is the difference between H-1B and H-1B cap?
“H-1B” refers to the visa category, while “H-1B cap” refers to the annual limit on the number of visas issued. Cap-subject H-1Bs are limited by this quota, while cap-exempt H-1Bs are not and can be filed year-round by qualifying employers.
