Cap Exempt H-1B as an H-1B alternative

The H1B visa program is the primary pathway for US employers to hire and retain highly skilled foreign workers in specialty occupations. However, the annual cap or limit on the number of new H1B work visas issued each fiscal year has made the process highly competitive and uncertain for many employers and foreign nationals. A category of employers — known as  “cap exempt H1B employers” — including institutions of higher education, nonprofit research organizations, and governmental research organizations can bypass the annual H1B cap. This means they can petition for HB visas for their foreign workers without being subject to the usual limitations. 

This exemption offers numerous benefits, such as increased flexibility in hiring, faster processing times, and the ability to attract and retain specialized talent more easily. For foreign workers seeking employment opportunities in the US, understanding the cap exempt H1B category can be a game-changer. Not only does it streamline the visa application process, but it also provides a potential pathway to permanent residency (a green card) and long-term career prospects in the country.

Whether you’re an employer seeking to leverage the cap exemption or a foreign worker exploring career opportunities in the US, this comprehensive guide aims to demystify the cap exempt H1B visa. From understanding the differences between cap exempt and cap subject H1B visas, to exploring their eligibility requirements and benefits, navigating the H1B renewal process, and transitioning to permanent residency, this article covers all the essential aspects of this coveted work visa category.

The H1B visa is a nonimmigrant work permit that temporarily allows US employers to employ foreign workers in specialty occupations. However, there is an annual visa cap or limit on the number of new H-1B visas that can be issued each fiscal year. This cap is currently set at 65,000, with an additional 20,000 visas available for foreign nationals holding an advanced degree.

However, certain types of employers are exempt from this annual cap. These employers can petition for H1B visas for their foreign workers without being subject to the lottery, allowing for a more streamlined and efficient H1B visa process. Because these positions tend to be with non-profit organizations, the pay can be lower overall, and employees are limited to working for cap exempt employers. Still, qualifying institutions must pay a minimum salary of $60,000 and transferring between cap exempt employers is relatively straightforward. If the employee wants to transfer to a cap subject employer, they will need to go through the usual H1B process, including the lottery.

Finding cap exempt H1B jobs can be difficult because institutions don’t always list that they are exempt. However, knowing the kinds of institutions, such as higher education and NGOs, who are typically exempt and focusing on looking at those employers can be a good strategy to finding a cap exempt job.

The main difference between cap exempt H1B and non exempt H1B is the application process and the availability of H1B visas. H1B employers who are subject to the cap have to participate in the annual H1B lottery, a computer-generated random selection process to allocate the limited number of H1B visas available each year. The number of H1B registrations for the lottery has consistently outpaced the supply of visas, leading to many qualified foreign nationals being denied the opportunity to work in the US. The number of applications has rapidly increased each other meaning there has been less and less chance of securing a visa.

On the other hand, cap exempt H1B employers are not subject to the annual cap. They can file H1B petitions for their foreign workers any time during the year, provided they meet the eligibility requirements. This exemption allows them to bypass the competitive H1B lottery process entirley and more readily secure a work permit for their foreign employees.

The most attractive benefit of the cap exempt H1B is that provides a faster, more streamlined pathway to working in the US. Because of the unpredictable nature of the lottery, cap exempt H1B employers have significantly more flexibility in hiring and staffing, giving potential employees peace of mind.  

This is also translates to increased job security and progression for cap exempt employees. Foreign workers at qualifying organizations can more easily get a job, and extend or renew their H1B status, overall experiencing fewer disruptions to their careers or personal lives. 

Because of the nature of the work, which is often specialist research and project based, employees at cap exempt jobs will usually have good options for transferring their visa once their H1B expires.

To qualify for an H1B visa, cap exempt or not, foreign workers must have a valid job offer from a US employer for a specialty occupation requiring at least a bachelor’s degree or equivalent. The employer must fall into a specialized category to qualify for the cap exempt H1B status. 

Higher education institutions, including colleges, universities, and other nonprofit educational institutions that provide educational services, are exempt from the annual H1B cap. This exemption allows academic institutions to attract and retain top talent worldwide, fostering an environment of intellectual exploration.

Nonprofit research organizations primarily engaged in groundbreaking basic or applied research endeavors are also exempted from the H1B cap restrictions. These organizations play a crucial role in driving innovation and scientific progress, and the cap exemption enables them to assemble teams of exceptional researchers and scientists from diverse backgrounds.

Finally, government research organizations and development centers operated by qualifying organizations are exempt. These research centers, often affiliated with prestigious universities or national laboratories, contribute to advancing cutting-edge technologies and scientific discoveries that have far-reaching impacts on various sectors, from national security to healthcare and energy.

The timing to apply for cap exempt H1B visa process is comparatively very flexible to the usual H1B process. Qualifying employers can file a cap exempt H1B petition at any point during the year without adhering to the strict annual cap season, whether for someone who is changing employers within the US or applying for a work permit for the first time. This means, in theory, individuals can apply for a cap exempt job whenever a position comes up.

If the foreign worker already has H1B status with a cap exempt employer but needs to extend their authorized stay, the employer can begin extension process well in advance of the current H1B status expiration date to avoid any potential gaps in employment authorization.

The maximum duration of stay in the United States on an H1B cap exempt visa is generally the same as for a regular H1B visa —  typically up to three years with the option to extend for a maximum of six years. 

If the individual wants to continue living and working in the US beyond the six year limit, then they will need to pursue permanent residency, whether through family (if they have immediate family in the US or are married to a US citizen or green card holder), or by switching to another visa. Because the H1B visa is a non-immigrant visa, the holder will need to switch to a dual-intent option, meaning they will have the option to pursue a green card.

People are typically sponsored for E-1 and E-2 employment visas, which allow them to live and work in the US based on substantial trade or investment activities between the two nations. Individuals with extraordinary abilities in their respective fields may also consider the O-1 extraordinary ability visa, which is a dual-intent visa allowing the pursuit of permanent residency. For those with significant financial resources, the EB-5 immigrant investor program offers a direct path to a green card by investing substantial capital in a new commercial enterprise that creates or preserves at least ten full-time jobs for US workers. 

Many cap exempt employers have established pathways for foreign workers to transition from H1B status to permanent residency due to their involvement in research and academia. So, speaking to your employer’s HR department and consulting with an immigration attorney are good first steps for transitioning from an H1B.

The renewal process for a cap exempt H1B visa is similar to that of a regular H1B visa. 

Extension of stay can be granted for  a maximum of six years, renewing in increments of up to three years at a time. Employees can generally continue working while USCIS reviews the petition, and processing times average around eight months. However, if renewed with premium processing, cap exempt H1Bs can be processed in as little as two weeks.

If the foreign worker isn’t pursuing permanent residence, then they need to spend at least a year outside the US after six years to be eligible again.

In conclusion, the H1B cap exempt visa offers a valuable pathway for foreign workers with specialized skills to work in the US. With its streamlined process and job security benefits, it can be an attractive option for both employers and foreign nationals. Understanding the eligibility requirements, application process, and renewal options is important to navigate this classification successfully.

If you’d like to learn more or have any questions, then reach out to us at Path2Canada.