Visa Focus Friday: The H-1B Cap-Exempt Visa

This week, we are spotlighting the H-1B cap-exempt visa, a valuable immigration option that allows certain U.S. employers to sponsor foreign professionals without being subject to the annual H-1B lottery.  This pathway is particularly important for nonprofit organizations, research institutions, and higher education entities seeking to attract global expertise without delay or uncertainty.

What Is the H-1B Cap-Exempt Visa?

The H-1B visa is a nonimmigrant visa category that permits U.S. employers to temporarily employ foreign workers in specialty occupations.  Under normal circumstances, H-1B visas are capped annually at 85,000—with 65,000 available to the general public and 20,000 reserved for individuals holding U.S. master’s degrees or higher.

However, certain employers are exempt from this cap, meaning they may file H-1B petitions at any time during the year and are not limited by the numerical cap.

Who Qualifies for Cap-Exempt H-1B Sponsorship?

To qualify for cap-exempt status, the sponsoring employer must fall into one of the following categories:

• An accredited institution of higher education (such as a university or college),
• A nonprofit entity affiliated with an institution of higher education (such as a teaching hospital or research lab),
• A nonprofit research organization, or
• A governmental research organization.

Additionally, foreign nationals working at but not directly for a qualifying cap-exempt institution may also qualify for cap exemption, provided the job duties directly and predominantly further the institution’s essential purpose.

Key Advantages of the Cap-Exempt H-1B Visa

• No Lottery Requirement: Employers may submit H-1B petitions at any time without waiting for the April filing window or entering the lottery.
• Year-Round Filing: There is no restriction on when employers can apply, allowing for greater flexibility in hiring.
• Shorter Wait Times: Applications may be processed more quickly without cap limitations or filing backlogs.
• Multiple Concurrent H-1Bs Allowed: A cap-exempt worker may hold a cap-exempt H-1B and simultaneously apply for a cap-subject H-1B without affecting their existing employment.
• Dual Intent Permitted: H-1B status allows holders to pursue permanent residency while maintaining their visa status.
• Family Members Eligible: Spouses and children under 21 may obtain H-4 dependent visas, and certain spouses may apply for employment authorization.

Common Roles and Fields for Cap-Exempt Sponsorship

Cap-exempt H-1B visas are commonly used to sponsor professionals in roles such as:

• University professors and researchers,
• Physicians in residency or fellowship training at teaching hospitals,
• Scientists working at government-affiliated research labs,
• IT professionals, engineers, or administrators supporting higher education operations,
• Academic exchange faculty or visiting scholars.

The Petition Process

​The process for filing a cap-exempt H-1B petition involves:
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1. Securing a Labor Condition Application (LCA) from the U.S. Department of Labor.
2. Submitting Form I-129, along with evidence that the position qualifies as a specialty occupation and that the employer qualifies as cap-exempt.
3. Providing proof of qualifications, including academic degrees, experience, and credentials.

Once approved, the beneficiary may begin employment, change status in the United States, or apply for an H-1B visa at a U.S. consulate abroad.

Why the Cap-Exempt H-1B Matters

The cap-exempt H-1B visa serves a critical purpose—enabling nonprofit, research, and educational institutions to bring in global talent without the delays and uncertainty of the H-1B cap.  This flexibility strengthens America’s innovation ecosystem, supports public health and research, and enhances higher education.

At Stommes Immigration, we assist both institutions and foreign professionals in navigating the complexities of the cap-exempt H-1B process.  From confirming eligibility to preparing thorough petitions, we ensure your case is presented with clarity and strength.

For strategic legal guidance or to determine whether your role qualifies as cap-exempt, contact us at [email protected].  Let us help you unlock the benefits of this unique visa pathway—without waiting for the lottery.

If you have questions about your visa status or if you are an employer exploring immigration options, we are here to help.  At the Law Office of Julia L. Stommes, we are committed to helping individuals and businesses navigate complex legal landscapes.
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The information provided in this blog is intended for general informational purposes only and should not be construed as legal advice.  To schedule a Consultation to discuss your legal immigration options, please email us at [email protected].