Cap Exempt H1B: A Guide

Last year, there were over 200,000 applicants for the skilled worker visa, respectively the H1B. Out of these, roughly 42% were chosen through the H1B lottery, a very competitive method that only gets more difficult as time goes by. But what’s very challenging if you intend to apply for an H1B visa is the limited number of petitions. What exactly is the H1B Cap Exemption, though? Here, you will find out everything that you need about this term.

What Is the H1B Cap Exemption?

Each year, there is a specific number of petitions available for foreign workers who seek work in the U.S., workers who have the proper qualifications and skills. There is a cap of 65,000 petitions for this type of worker. However, for those that have advanced degrees at a master’s level or something above that, there are some additional 20,000 petitions. Therefore, a total of 85,000 petitions are available for H1B visa applicants.

The exemption category is only available to certain U.S. employers. In order to have it available for them, they need to be either a non-profit research or government organization, a non-profit organization associated with a higher education institution, or a higher education institution.

You should also be aware that there are two types of H1B cap exempt petitions. On one hand, there are the petitions filed by cap-exempt employers. On the other hand, there are petitions that were filed on behalf of cap-exempt candidates.

To simplify this, the limit over the H1B petitions is what’s known as the H1B cap. But there is also a certain category of people that hold H1B visas and either go from an employer to another, or they have specific positions in universities. These people need to go through the lottery process, and this is what’s known as the H1B cap exemption.

Who Is Exempt from the H1B Cap?

There are a few situations that will make someone exempt from the H1B cap. For instance, someone who is not in the U.S. at this moment and used to be under H1B status in the past may qualify. But in order to make sure they can make an employer file a cap-exempt petition, they need to bring some documents as proof. Evidence is needed in order to prove that he/she was still in the country during the last six years. Also, they should have not reached their maximum stay duration either.

Conversely, someone who has been granted an H1B cap exemption in the past will not be subject to the cap, as it’s mentioned by the USCIS guidelines.

Requirements

If you want to qualify, you should know that there are some specific requirements that will decide whether an employer will be accepted or not. Here are the requirements for two categories:

Higher Education Institution

As a higher education institution, you also have specific requirements that you need to meet. There are USCIS mandated criteria that such an institution needs in order to qualify.

For instance, it needs to take in students who have earned a secondary education, and it also has to be recognized as a public or non-profit institution. Additionally, it should be able to give educational programs that award either a minimum two-year education towards a degree or bachelor’s degrees. Lastly, the institution needs to have a license from a proper institution in order to be able to educate people beyond secondary school.

Non-Profits

Non-profit organizations have a few, different requirements when it comes to qualifying. A non-profit organization that is associated with a government organization will have to be associated with an institution through either shared board control or ownership. Also, it needs to be a non-profit entity, or act as a branch.

In general, not-for-profit institutions are universities or colleges that have specific affiliations, such as hospitals or medical labs. According to USCIS, a non-profit research organization is “primarily engaged in basic or applied research.”

How to Identify H1B Cap Exempt Employers

When it comes to identifying cap exempt H1B employers, there are a few things that you can do to make this possible. But before doing so, you need to be aware of how much time this process can take. You will have to check out some H1B employers and make sure to find databases that will send you towards a suitable H1B employer.

For instance, if you want to know whether you are eligible for a cap exemption under H1B, then a non-exempt employer can file an H1B for you. Afterward, you will have to deal with working at a different company, as it’s a part of a joint agreement between the company that filed for you and the one you’re working at.

Then, the one that filed on your behalf will file a petition with some evidence that you can do the same type of work that you did at the other company.

H1B Premium Processing

If you succeed in finding an employer, then you have the option to choose premium processing. It’s much faster than standard processing, which is a benefit if you don’t want to wait too long. With normal processing, the whole thing may take between three and four months. Meanwhile, premium processing will take about 15 days. Even still, times may vary with premium processing too, yet it will be much faster.

What you need to know is that premium processing doesn’t make you cap-exempt, and it definitely has no influence on your chances of being selected for the lottery. It also expedites the speed at which the USCIS will process your I-129 petition, so keep this in mind. The good news is that if the one filing your petition with premium processing is your employer, and you’re not lucky with the lottery, you will have all your fees refunded.

On the other hand, if you are lucky enough and have your petition selected, you will have the chance to start working on October 1^st.

H1B Cap-Exempt Transfers

In some cases, you may not be lucky enough to find a cap exempt H1B employer. Thankfully, there are alternatives for you too. As long as you’re still on H1B status, you have the chance to transfer to a different employer, whether you used to have an H1B visa status or have one right now.

It’s recommended to follow potential contractual agreements with the former employer and non-compete laws. But at the same time, you don’t need to get any permission from the employer as the H1B visa holder.

This transfer can be initiated if the new employer submits an H1B Visa Transfer petition with the USCIS. There are some qualifications for the transfer, though. For example, you are able to start working the same day USCIS gives the receipt to the employer. It is required to start your employment on the date that is mentioned in the petition submitted to the USCIS. Not only that, but you will need certain documents as evidence of employment. The best ones are pay stubs, but you can also bring something else such as a leave of absence letter or an H1B employer letter.

In addition, if you stopped the employment with an H1B employer before the transfer was initiated, premium processing is recommended.

Bear in mind that this whole process can take anywhere between 4-8 weeks after the application submission. Several factors may influence the amount of time it takes to process the application, such as the USCIS processing center that deals with it and the location of employment.

In some cases, you may want to transfer to or from a cap-exempt employer. But you need to be careful with this. While there are some advantages to coming to the U.S. under a cap-exempt employer and transferring to a cap-subject one, you shouldn’t take too much advantage of this.

When you try to transfer to a cap-subject employer, they will have to file a cap-subject petition for you. You can’t submit it yourself, as you will not be counted against the cap due to no longer being a cap-exempt candidate. Your education level will be the decisive factor when you’re entering the lottery. And if you’re lucky enough to have yours selected, then you won’t have to wait too long. You can start working at the same time with other applicants, respectively October 1^st.

Read More

• 6 Ways to Find an H1B Visa Sponsorship
• How to Change Jobs on an H1B Visa
• The Non-ECR Category: A Guide
• H1B Visa Stamping: H1B Visa Interview Documents and More
• Complete Guide to the H1B to Green Card Process
• What Are My Options for Change of Status Visa Stamping If I Am Already in America?
• Guide to the H2B Visa
• H1B Transfer: How To Change Jobs on an H1B Visa

Conclusion

Applying for an H1B visa might make you excited for the future, but the limited amount of petitions will always feel like the biggest obstacle to overcome. This is why you should consider an H1B cap exemption. This exemption will make someone go through a lottery process, out of which some people come out lucky, and others don’t. Those that manage to get their petition chosen can start working by October 1^st. If you are curious about H1B visas and cap exemption, you can read more on Stilt and familiarize yourself with the subject. We are always willing to help you out.

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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