Understanding The United States’ Employers’ H1-B Cap Exemption

When getting a work visa in the United States, the H1-B visa is a big deal for skilled workers looking to work here temporarily. But, dealing with the H1-B visa process can be tricky, especially because there is a limit on how many visas can be given out each year.

Are 65,000 spots available through the regular H1-B cap and another 20,000 for people with advanced degrees? Because so many people want these visas, they have to use a lottery to pick who gets them, so only the lucky ones can move forward with getting their visas.

But there is good news for some employers. They can qualify for H1-B cap-exempt status, so they don’t have to worry about the quota. This lets them get an H1-B visa for a foreign worker at any time of the year, and the worker can start working right after the visa is approved.

In this post, we will look into H1-B cap-exempt employers, what they need to do to qualify, the perks they bring to the company and the worker, and more.

Overview of H1-B visas

The H1-B visa is a work visa for foreigners that lets US companies bring in workers from other countries and lets skilled international students stay and work in the US after school. It is a really popular way for foreigners to come to the US. Because so many people want this visa, the US government limits how many can get one yearly through a random lottery.

If you are trying to get a regular H1-B visa or a “cap-subject” visa, you can only try to get it once a year. In 2023, the USCIS only let 65,000 regular H1-B visas go out, and an extra 20,000 visas for people with a master’s degree or more.

Brief info on the H1-B cap

The H1-B visa lets companies in the US hire people from other countries for short-term jobs that need a lot of specialized knowledge, both in theory and practice, to do the job well, and they need to have a bachelor’s degree or a higher degree (or something like it) in the job’s area.

Jobs that fit into the H1-B specialty category include accounting, law, engineering, architecture, maths, science, social sciences, business, medicine and health, teaching, religion, and arts. But, the law only lets out 65,000 H1-B visas every year, with the first 20,000 for people with a US master’s degree or more.

This rule doesn’t apply to the other cap-exempt visas. So, for H1-B temporary work visas, unless the company is one of the lucky ones not hit by the H1–B cap, there is a total of 85,000 new statuses and visas to go around. Plus, there are usually more than three times that number of companies in the US looking to bring in foreign workers yearly.

Generally, a company doesn’t count against the H1–B cap if it is a higher education school, a non-profit connected to or working with a school, or a non-profit that does research or works for the government.

For a fuller explanation, under the agreements between the US and Chile and the US and Singapore, an extra 6,800 visas are given out yearly from the 65,000 for the H1-B1 program. Any leftover visas in this category roll over to the next year’s regular H1–B cap.

Also, H1-B workers working in the Commonwealth of the Northern Mariana Islands (CNMI) or Guam might not have to count against the H1-B cap if their employer files a petition for them by the end of 2029.

Employers exempted from the H1-B cap.

• Schools and colleges:

These are public or charity schools that offer higher education after high school. They need to meet a few requirements, such as offering a bachelor’s degree or a two-year program that counts as credit for a degree and being officially recognized.

• Charities connected to schools:

These are groups linked to schools or colleges, like branches or companies. They are seen as connected if they own or control each other, work together under the school, or have a written agreement to collaborate on research or teaching, like training medical staff.

• Research groups that don’t make money:

These are groups that mostly do basic or applied research.

• Research groups run by the government:

These government bodies, such as federal, state, or local, focus on research. Like the other groups, they conduct basic and applied research. An H1-B worker doesn’t have to work for a special company to be H1-B cap-exempt.

They can also be H1-B cap exempt if they work for a regular company but spend most of their time at a special one, doing work that mostly helps the special one’s main aims or tasks, like teaching at a university, doing research for a non-profit, or working for the government.

The person asking for the H1-B cap exemption needs to prove that the H1-B worker’s job is connected to what the special company is all about.

The key considerations of an H1-B cap exemption

• No H1-B cap: The big perk of being a cap-exempt employer is you can sponsor H1-B visas without worrying about the yearly limit. This means you can bring in skilled foreign workers all year round, no matter if the yearly limit is full.
• No hiring limits: H1-B cap-exempt employers can hire foreign workers for specialized jobs without the usual restrictions of the H1–B cap. This lets them bring in the best talent from around the globe to fill important roles that might be hard to find in the US.
• More career growth: Working for an H1-B cap-exempt employer, especially in academia or research, can lead to some cool career moves and professional growth. Employees might get to work on cutting-edge research, team up with others, and get resources to improve their skills and education.
• End of H1-B cap-exempt job means no more H1–B: If your H1-B cap-exempt job ends, you must go through the H1-B cap again unless you get another H1-B cap-exempt job or were counted against the H1-B cap before six years.
• Work for multiple employers: H1-B visa holders can work for more than one employer at a time. Also, if you work for an H1-B cap-exempt employer, you can work for an H1-B cap-subject employer, even if you were previously counted against the H1-B cap. Remember, if your H1-B cap-exempt job ends, you can’t work for the H1-B cap-subject employer without getting an approved H1-B petition through the regular H1-B lottery.

The challenges

There are also a few big challenges and things to think about if you are looking at H1-B cap-exempt jobs:

• Find a company that will sponsor you. Even if a company doesn’t have to follow the cap, they might not always be keen on sponsoring you. Look into companies that don’t have to follow the cap and are willing to sponsor people from other countries.
• Not many job options. Jobs that don’t have to follow the H1-B cap might not be as easy to find, especially depending on where you are or what kind of work you are looking at.
• There is a lot of competition. Since there aren’t as many jobs, and more people want them, it can be tough to stand out.
• The pay. Since the companies that don’t have to follow the H1-B cap are usually non-profits or government research places, you might not get paid as much as you would at a company that does have to follow the cap. It is really important to check out the pay and benefits at the company you are interested in to see if it is a good fit for you.
• Changing visas. If you want to move from a job that doesn’t have to follow the H1-B cap to one that does, you will probably have to switch your visa. This means you will have to go through the H1-B lottery process.

When to apply

If you are applying for a visa that doesn’t have a cap, you can do it whenever you want throughout the year. This means you don’t have to worry about specific times when you can apply or how many you can. Once you get a job offer related to your studies or degree, your employer has to file a special petition for you.

They must show that your job is H1-B cap-exempt and meets all the requirements. After the file, you must wait to find out if USCIS has approved it. If they do, you can start working for your employer whenever you have a valid visa.

How long does it take to process the application?

The time it takes to complete the H1-B cap-exempt process can vary greatly, but on average, it takes about 7 months. This includes different steps, such as the Department of Labor figuring out the right wage, handling the Labor Condition Application, and the USCIS part.

Remember that this is just an average, and the real times can be shorter or longer depending on the case. Both job seekers and employers should watch the USCIS website for the latest wait times, as they can change based on how busy they are. A big plus of going through the H1-B cap-exempt route is that you don’t have to deal with the H1-B lottery and its long wait times.

People going through the regular H1-B process often spend a big chunk of February and March just waiting to see if they made it into the lottery and then have to wait even longer to start working, sometimes not until October 1st.

However, with H1-B cap-exempt jobs, you can hire people from abroad at any time and have them start working right after their visa is approved, which is much more flexible for both the company and the worker.

How long does an H1-B cap exemption last?

If an employer wants to file for an H1-B visa for an employee who has already been in the US and hasn’t used up their six-year visa, they can do it. This is for the rest of the time the employee is allowed to stay in the US. Just a heads up, you only get to reset that six-year clock if you have been out of the US for at least a year.

After that, you can apply for another H1-B visa under the quota. If you want to know more about this or something like it, you should talk to an immigration lawyer who knows a lot about immigration and specializes in H1-B cap-exempt.

Get help!

Employers who don’t have to follow the H1-B cap are important for bringing talented people from other countries to work in the US. By not worrying about the number of visas they can give out, the US immigration system helps bring new ideas, top-notch education, and teamwork worldwide.

If you are looking for a job in the US, checking out places that don’t have to follow the H1-B cap could be a great way to achieve your career dreams and help push forward science and tech. You can boost your chances of landing a job at one of these places by doing your homework, making good connections, and keeping up with the latest news.

It might take some hard work and perseverance, but the chances are that you will end up with a job you love that makes a difference in your field. If you are an employer with an H1-B visa or a foreign worker with questions about working without the H1-B cap, our team at Gehi and Associates is here to help!

Just set up a meeting with one of our immigration lawyers today to get proper guidance!