How the H‑1B Cap‑Exempt Visa Works

The H‑1B cap‑exempt visa gives you and your employer the freedom to hire and work year‑round, without depending on the annual cap or random lottery selection.

This guide explains who qualifies for cap‑exempt status, how petitions differ from cap‑subject filings, and what to expect at each stage, from eligibility and documentation to processing time, costs, and compliance obligations.

What is an H-1B cap-exempt visa?

The H-1B visa is a non-immigrant work visa for foreign workers in specialty occupations that require at least a bachelor’s degree or equivalent. Each fiscal year, U.S. Citizenship and Immigration Services (USCIS) limits the number of new H-1B petitions it can approve to 85,000-65,000 under the general cap and 20,000 for individuals with a U.S. advanced degree.

A cap‑exempt H‑1B is not subject to this annual cap. It allows certain employers, such as universities, nonprofit research institutions, and governmental research organizations, to file petitions at any time of year without entering the lottery.

The cap exemption applies to employers, not individuals. If you work for a qualifying U.S. institution, your petition can be filed outside the lottery window.

H-1B cap-exempt eligibility rules

Determining whether an H‑1B petition is cap‑exempt starts with understanding both who the employer is and what the job entails. USCIS reviews each case based on the organization’s structure, funding, and mission, as well as whether the role itself qualifies as a specialty occupation.

Together, these factors decide if the petition is eligible to bypass the H‑1B lottery and be filed at any time of year, setting the stage for two key evaluations: employer eligibility and position eligibility.

Employer eligibility for cap exemption

Determining employer eligibility is the foundation of every cap‑exempt H‑1B petition. Under the Immigration and Nationality Act and 8 CFR 214.2(h)(8)(ii)(F), USCIS evaluates whether an organization’s structure, purpose, and nonprofit status qualify it to bypass the annual cap.

The agency looks closely at whether the entity’s mission is tied to education or research and whether it maintains the proper legal and operational relationship with an accredited institution. The categories below outline which types of employers typically meet these criteria.

• Institutions of higher education: Accredited U.S. colleges and universities authorized to award associate, bachelor’s, master’s, or doctoral degrees. Positions supporting the school’s core teaching or research functions—such as professors, lecturers, or specialized research staff—generally qualify.
• Nonprofit entities related to or affiliated with higher education institutions: Organizations with a written partnership, shared ownership, or board control connection to a qualifying college or university. Examples include affiliated teaching hospitals, research foundations, and university-operated technology centers that advance an institution’s educational or research mission.
• Nonprofit research organizations: Entities primarily engaged in basic or applied research across scientific or academic fields. These organizations may collaborate with universities or receive funding from public or private research programs.
• Government research organizations: Federal, state, or local agencies authorized to conduct or fund research projects. Common examples include national laboratories, health departments, and public agencies involved in scientific or policy research.

To qualify, the organization must operate as a nonprofit organization under IRS section 501(c)(3) and demonstrate that its primary mission aligns with education or research.

Even if the employer qualifies, the job itself must still meet H‑1B requirements.

Employee and position eligibility

The offered position must be a specialty occupation, meaning it requires specialized knowledge and at least a bachelor’s degree in a specific field. Examples include engineering, data analysis, teaching, and scientific research.

The H‑1B employee must hold the required degree or equivalent experience. If the role supports the exempt entity’s core purpose, such as teaching at a university or conducting research at a government lab in Washington, it typically qualifies.

If the employee will work at a third-party site, the employer must prove that the work directly supports the exempt institution’s mission.

Eligibility determines not just approval but timing and flexibility for future employment under immigration law.

H-1B cap-exempt vs. cap-subject H-1B

While both cap‑exempt and cap‑subject H‑1B petitions use the same forms and follow the same USCIS adjudication standards, the timeline and filing rules differ significantly.

The distinction lies in when and how employers can file and whether positions must go through the annual lottery. The comparison below highlights the key procedural and practical differences between these two categories.

Some professionals hold mixed employment, for example, working part-time for a university (cap-exempt) and part-time for a private company (cap-subject). Each petition must independently meet its category’s requirements.

Once you know your filing path, processing time becomes the next consideration.

Processing time

Cap‑exempt petitions follow the same USCIS review process as other nonimmigrant workers but without the lottery delay.

Typical processing times range from two to six months, depending on the service center and workload. Premium processing is available for an additional fee and guarantees a decision within 15 calendar days.

Delays can occur if USCIS issues a Request for Evidence (RFE), often related to proving employer affiliation or specialty occupation criteria.

Because cap-exempt petitions can be filed at any time, employers can align start dates with project or academic schedules rather than the federal fiscal year.

Processing time affects planning, but so does how long the visa remains valid.

Validity period and extensions

Initial H‑1B approvals are typically granted for up to three years, with extensions available for a total stay of six years.

If you move from a cap‑exempt employer to a cap‑subject employer, you must enter the H‑1B lottery unless you already hold counted H‑1B status from a prior cap‑subject approval.

Transfers between cap-exempt employers are allowed at any time, provided both qualify under the exemption rules.

Understanding validity helps you plan long‑term employment‑based and green card strategies.

Salary and wage requirements

There is no $100,000 minimum salary rule for any H‑1B category. Employers must pay at least the prevailing wage for the occupation and location, as certified in the Labor Condition Application (LCA) filed with the Department of Labor.

For nonprofit organizations and research entities, prevailing wages are determined using the same DOL wage levels as private employers, though roles may fall into lower wage levels based on duties and funding structures.

A lower salary does not make approval easier. USCIS evaluates whether the wage matches the job’s skill level and local standards.

Wage compliance connects directly to filing costs and employer obligations.

Fees and total cost

Every H‑1B petition includes government filing fees, but the total amount depends on the type of employer and petition. Cap‑exempt organizations (such as universities, nonprofit research entities, and government research institutions) are exempt from some fees that apply to private companies.

Understanding these differences helps employers budget accurately and ensure proper payment before filing. The list below outlines the standard and optional fees for cap‑exempt petitions.

Mandatory fees (paid by employer):

• Base filing fee: $460
• Fraud prevention and detection fee: $500
• Public Law 114‑113 fee: $4,000 (for large employers with 50+ U.S. employees where half hold H‑1B or L status)
• Premium processing (optional): $2,805 for a 15‑day decision

ACWIA training fee: Exempt for nonprofit and government research organizations, as well as institutions of higher education.

Employers must pay all required government fees. Optional legal or document preparation costs vary by organization and are often managed with help from an immigration attorney.

Fees vary, but approval rates are another major concern.

Approval rate and risk factors

Approval rates for petitions are generally high because employers are established institutions with clear eligibility. Still, USCIS scrutiny has increased around documentation.

Common RFE triggers include:

• Insufficient proof of nonprofit or research status
• Weak or missing affiliation agreements with universities
• Job descriptions that fail to show a clear specialty occupation
• Third-party placements not tied to the exempt entity’s mission

Strong documentation and consistent compliance records significantly improve outcomes. Employer selection plays a major role in approval success for H‑1B beneficiaries.

H-1B cap-exempt employers list (USCIS context)

USCIS does not publish an official list of cap-exempt employers. Instead, eligibility is determined on a case-by-case basis.

Examples of qualifying organizations include:

• Accredited universities and colleges: Public or private higher education institutions authorized to grant formal degrees and engaged in teaching, research, or academic administration.
• University‑affiliated teaching hospitals: Medical centers formally linked to accredited universities through affiliation agreements that support medical education, residency training, or research programs.
• Nonprofit research foundations: Independent or university‑connected entities conducting applied or basic research in scientific, technical, medical, or policy fields, often supported by public funding or academic collaboration.
• Federal or state laboratories: Government‑operated research facilities such as the National Institutes of Health, the Department of Energy’s national labs, or state public‑health and agricultural research centers engaged in scientific investigation or innovation.

To verify an employer’s status, review its IRS nonprofit designation and any formal affiliation agreements with higher education institutions.

Assuming exemption without confirmation can lead to petition denials or delays.

New rules and policy updates

Recent USCIS policy guidance emphasizes clearer documentation of employer affiliation and nonprofit organization status. Petitioners must show that the relationship between the nonprofit and the university is direct and active, not merely historical or contractual.

USCIS and the Department of Labor have also increased site visits for compliance verification. Employers should maintain updated records of research activities, payroll, and job duties to demonstrate ongoing eligibility.

Regulatory interpretations evolve, so checking the latest USCIS updates before filing is critical.

Even with strong eligibility, compliance remains key to maintaining status.

Important compliance considerations

Once approved, you must continue working within the scope of the exempt employer’s petition. Unauthorized concurrent employment with a cap-subject company can violate status.

Employers must report material changes, such as job title, location, or salary, to USCIS and may need to file an amended petition.

Dependents on H‑4 visas remain tied to your H‑1B status. If your employment ends or changes to a cap-subject role, your status must be updated accordingly.

Navigating these requirements often requires structured support, legal guidance, and (when needed) consultation with an immigration attorney.

Managing H-1B cap-exempt filings with confidence

Cap‑exempt H‑1B petitions provide flexibility that most employers and professionals can’t find in the standard lottery process. Understanding eligibility, documentation, and timing makes the difference between a smooth approval and costly delays.

Lighthouse helps candidates and institutions succeed by combining technology with expert guidance across every step of the process. Our team evaluates eligibility, prepares evidence aligned with USCIS standards, and coordinates filings to ensure compliance with both USCIS and Department of Labor requirements. Whether you are applying for the first time or managing extensions, Lighthouse simplifies the process from start to finish.

Ready to move your case forward? Start your H‑1B evaluation today and see how Lighthouse can help you secure employment authorization without the uncertainty of the lottery. Get started  with Lighthouse today.

Frequently asked questions

What is an H‑1B cap-exempt visa?

A cap-exempt H‑1B allows qualifying employers to sponsor foreign workers without being subject to the annual H‑1B lottery. It follows the same specialty occupation rules but is not numerically limited.

What is the salary for an H‑1B cap-exempt position?

There is no fixed minimum salary. Employers must pay at least the prevailing wage for the role and location as determined by the Department of Labor.

Who has to pay $100,000 for an H‑1B visa?

No H‑1B category requires a $100,000 payment. This misconception likely stems from private legal or service fees unrelated to USCIS filing costs.

What is the cap-exempt H‑1B approval rate?

Approval rates are generally high when employer eligibility and job requirements are well documented. Most denials occur when affiliation or nonprofit status is unclear.

How long is an H‑1B cap-exempt valid?

Initial approvals can last up to three years, with extensions available for a total of six years or longer if you pursue permanent residence through employment‑based processes.

How much does a cap-exempt H‑1B cost?

Costs include the $460 base filing fee, $500 fraud prevention fee, and optional $2,805 premium processing fee. Nonprofit and research employers are exempt from the ACWIA training fee.