Non-Profit H-1B Explained

If you're a skilled professional interested in working for a nonprofit organization in the United States, or you're a nonprofit seeking to hire foreign talent, understanding the nonprofit H-1B category offers significant advantages over the traditional H-1B process. 

This guide explains how nonprofit H-1B petitions work, who qualifies for cap-exempt status, specific requirements that apply, and frequently asked questions about the process.

What is the nonprofit H-1B category?

The nonprofit H-1B category allows qualifying nonprofit organizations to sponsor foreign workers for specialty occupation positions without being subject to the annual H-1B cap. This means eligible nonprofit entities can file H-1B petitions year-round and avoid the H-1B lottery system that affects most private sector employers.

The H-1B nonimmigrant visa program includes specific provisions for certain nonprofit organizations, recognizing their unique role in education, research, and public benefit. While the fundamental H-1B visa requirements remain the same (specialty occupation, bachelor's degree, and proper employer-employee relationship), nonprofit employers gain access to cap-exempt status under specific circumstances.

Cap-exempt employers can sponsor H-1B workers at any time during the fiscal year, providing greater flexibility for both organizations and beneficiaries. Instead of waiting for the annual lottery window each March, qualifying nonprofit entities can respond to staffing needs immediately.

For H-1B workers, this means avoiding the uncertainty of the H-1B cap and annual lottery system. Rather than competing for one of the 85,000 available visas through the random selection process, qualified professionals can secure H-1B status based solely on meeting the eligibility requirements.

Which organizations qualify as nonprofit H-1B employers

Not all nonprofit entities automatically qualify for cap-exempt status. USCIS (U.S. Citizenship and Immigration Services) recognizes three specific categories of organizations that can file cap-exempt petitions:

Institutions of higher education

Any accredited college or university in the United States qualifies as a cap-exempt employer. This includes:

• Public and private universities
• Community colleges offering degree programs
• Graduate schools and professional schools
• Specialized institutions accredited to grant degrees

The institution of higher education must be legally authorized to provide education beyond the secondary school level and award bachelor's degrees or offer programs leading to recognized credentials.

Nonprofit entities affiliated with institutions of higher education

Nonprofit organizations that maintain formal affiliations with qualifying institutions can also claim cap‑exempt status. This must be demonstrated by a written affiliation agreement showing shared ownership, control, or governance.

Common examples include:

• University-affiliated research institutes
• Teaching hospitals connected to medical schools
• Nonprofit foundations supporting specific universities
• Research centers operating under university partnerships

Nonprofit research organizations and governmental research organizations

Organizations primarily engaged in basic research or applied research may qualify for cap-exempt status. This includes:

• Nonprofit research organization: Tax-exempt entities whose fundamental activity involves basic research or applied research
• Governmental research organizations: Federal, state, or local government research centers with research as their primary function

The organization must demonstrate that research constitutes its fundamental activity, not merely a secondary function alongside other operations.

Required documentation for nonprofit eligibility

To establish cap-exempt status, nonprofit employers must provide:

• Tax-exempt determination letter: IRS documentation confirming 501(c)(3), 501(c)(4), or 501(c)(6) status for nonprofit entities
• Affiliation agreement: Formal documentation establishing the connection between a nonprofit entity and an institution of higher education
• Research evidence: Publications, mission statements, or organizational documents demonstrating that basic research or applied research comprises the fundamental activity
• Organizational structure: Corporate documents showing that the qualifying institution maintains the required relationship with the petitioning entity

Nonprofit H-1B eligibility for workers

H-1B beneficiaries working for nonprofit organizations must meet the same core requirements as those sponsored by cap-subject employers:

Specialty occupation requirement

The position must qualify as a specialty occupation, meaning it requires:

• Theoretical and practical application of specialized knowledge
• At least a bachelor's degree in a specific field of study
• Showing that the degree requirement is normally required for the position
• The nature of the duties is sufficiently complex and specialized

Educational qualifications

The H-1B beneficiary must possess:

• Bachelor's degree: Minimum educational requirement in a field related to the specialty occupation
• Advanced degree: A Master's degree or higher may strengthen the petition, particularly for research positions
• Equivalent experience: In some cases, relevant work experience may substitute for educational requirements using the three-to-one formula (three years of experience equals one year of education)

Employer-employee relationship

The nonprofit organization must demonstrate:

• Right to control when, where, and how the beneficiary performs work
• Authority to hire, fire, and supervise the employee
• Responsibility for paying wages and providing benefits
• The position involves specialty occupation job duties that align with the organization's mission

Nonprofit organizations often employ H-1B workers in roles such as research scientists, data analysts, program coordinators, healthcare professionals, educators, and specialized administrative positions that require advanced knowledge and skills.

How nonprofit H-1B cap-exemption works

The annual H-1B cap limits most employers to 85,000 new H-1B approvals per fiscal year: 65,000 for general applicants and 20,000 for those with U.S. master's degrees or higher. Cap-subject employers must participate in the annual lottery registration process each March.

Cap-exempt employers can file H-1B petitions throughout the year without numerical limitations. Once USCIS approves a cap-exempt petition, the H-1B worker gains the same work authorization, extension possibilities, and family benefits as those sponsored by cap-subject employers.

Transition rules between cap-exempt and cap-subject employers

From cap-exempt to cap-subject: An H-1B worker currently employed by a cap-exempt employer who wants to transfer to a cap-subject employer must be selected in the H-1B lottery. They cannot simply transfer their existing H-1B status to the new employer.

From cap-subject to cap-exempt: Workers with approved H-1B petitions from cap-subject employers can transfer directly to cap-exempt employers without lottery participation. This transfer maintains their existing H-1B status and remaining time.

Between cap-exempt employers: H-1B employees can transfer freely between different cap-exempt employers by filing standard transfer petitions, similar to transfers between cap-subject employers.

Concurrent H-1B employment

H-1B nonimmigrant workers may work simultaneously for multiple employers if each employer files separate H-1B petitions. This allows someone to work part-time for both a cap-exempt employer and a cap-subject employer, provided both petitions receive approval.

Nonprofit H-1B filing requirements

Form I-129 and supporting documentation

Nonprofit employers file Form I-129 (Petition for a Nonimmigrant Worker) along with the H classification supplement. Required supporting evidence includes:

• Labor Condition Application (LCA): Filed with the Department of Labor, certifying prevailing wage and working conditions
• Specialty occupation evidence: Detailed job description, organizational chart, and documentation showing the position requires a bachelor's degree
• Beneficiary qualifications: Educational credentials, transcripts, work experience letters, and professional licenses
• Cap-exempt status documentation: Evidence establishing the organization qualifies as a cap-exempt employer

Labor Condition Application requirements

All H-1B employers, including nonprofit entities, must file an LCA with the Department of Labor before submitting the USCIS petition. The LCA certifies:

• The employer will pay the H-1B worker at least the prevailing wage for the occupation and location
• Employment of the H-1B worker will not adversely affect the working conditions of similarly employed U.S. workers
• There is no strike or lockout in the course of a labor dispute
• The employer has provided notice to workers or their bargaining representative

Nonprofit employers must maintain public access files containing LCA documentation and related materials available for inspection.

Salary and wage rules

Nonprofit H-1B minimum salary requirements follow the same prevailing wage rules as cap-subject employers. The H-1B beneficiary must be paid:

• The prevailing wage for the occupation in the area of intended employment, or
• The actual wage paid by the employer to other employees in similar positions, whichever is higher

The Department of Labor determines prevailing wages based on wage surveys and local market conditions. Nonprofit status does not exempt organizations from meeting these wage requirements.

Costs and fees for nonprofit H-1B petitions

Mandatory filing fees

Nonprofit employers must pay several required fees when filing H-1B petitions:

• Base I-129 filing fee: $460 for the petition
• Fraud Prevention and Detection fee: $500 for initial petitions and certain employment changes
• Public Law 114-113 fee: Additional fee for employers with 50 or more employees where more than 50% hold H-1B or L-1 status. 

The H-1B non-profit 100k fee rule

Recent changes to H-1B regulations have introduced significant fee increases for certain employers. The H-1B non-profit 100k fee applies to employers meeting specific criteria regarding workforce composition and dependency on H-1B and L-1 workers. However, many traditional nonprofit entities may be exempt from this substantial fee increase due to their organizational structure and employment patterns.

Nonprofit entities should carefully evaluate their workforce composition and consult with U.S. immigration professionals to determine which fees apply to their specific situation.

Optional premium processing

Premium processing service guarantees USCIS will adjudicate the petition within 15 calendar days for an additional $2,805 fee. This can be particularly valuable for nonprofit organizations with time-sensitive hiring needs or when coordinating with academic calendar schedules.

Employer payment responsibilities

Immigration law requires U.S. employers to pay all mandatory government filing fees. The H-1B beneficiary cannot be required to pay the I-129 filing fee, fraud prevention fee, or Public Law fees. However, beneficiaries may pay optional costs such as premium processing if they choose to expedite their case.

Step-by-step nonprofit H-1B application process

Step 1: Confirm cap-exempt eligibility

Before beginning the petition process, verify that your organization qualifies for cap-exempt status. Gather documentation proving:

• Tax-exempt status under appropriate IRS provisions
• Affiliation agreement with an institution of higher education (if applicable)
• Evidence that basic research or applied research comprises the fundamental activity (for research organizations)

Step 2: Recruit and select the H-1B candidate

Identify qualified candidates who meet both the job requirements and H-1B eligibility criteria. Evaluate their educational credentials, work experience, and specialty occupation qualifications.

Step 3: File Labor Condition Application

Submit the LCA to the Department of Labor through their electronic filing system. The LCA must be certified before filing the I-129 petition with USCIS.

Step 4: Prepare and file Form I-129

Compile all required documentation and file the complete petition package with the appropriate USCIS service center. Include:

• Completed Form I-129 with H classification supplement
• Certified LCA from the Department of Labor
• Evidence of cap-exempt employer status
• Detailed job description and specialty occupation evidence
• Beneficiary's educational and professional qualifications
• All required filing fees

Step 5: Respond to USCIS requests

If USCIS issues a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), respond promptly with the requested additional documentation or clarification.

Step 6: Receive approval and coordinate status change

Upon approval, the beneficiary can either change status within the United States (if already present in lawful status) or apply for an H-1B visa at a U.S. consulate abroad.

Nonprofit H-1B processing time expectations

Standard processing for nonprofit H-1B petitions typically takes three to six months, similar to cap-subject petitions. Processing times can vary based on:

• USCIS service center workload
• Completeness of the initial filing
• Whether additional evidence is requested
• Time of year and seasonal fluctuations

Premium processing reduces this to 15 calendar days but requires additional fees. Many nonprofit entities find premium processing valuable when coordinating with academic schedules or urgent staffing needs.

Maintaining nonprofit H-1B status

Compliance requirements

H-1B nonimmigrant workers at nonprofit organizations must:

• Work only in the specialty occupation described in the approved petition
• Maintain the employer-employee relationship with the sponsoring organization
• Receive wages at least equal to the amount specified in the LCA
• Notify USCIS of material changes to job duties, work location, or employment terms

Extensions and amendments

H-1B workers can extend their status in three-year increments up to the six-year maximum. Extensions beyond six years may be available for those with pending or approved employment-based green card applications.

Material changes to the H-1B employment may require amended petitions, including:

• Significant changes to job duties or responsibilities
• Changes to the work location that affect the LCA validity
• Promotion or title changes that alter the specialty occupation nature
• Substantial increases in salary or benefits

Dependent benefits

H-1B workers' spouses and unmarried children under 21 can obtain H-4 dependent status. H-4 dependents can:

• Attend school at any level without restriction
• Apply for employment authorization in certain circumstances (specifically, when the principal H-1B worker has an approved I-140 immigrant petition)

Nonprofit H-1B to green card pathways

Working for a nonprofit organization on an H-1B can provide several pathways for obtaining permanent residence:

• EB-1 Outstanding Researcher or Professor: For those with at least three years of experience in teaching or research and recognized internationally
• EB-2 with National Interest Waiver: For those whose work benefits the United States significantly
• EB-2 or EB-3 with PERM Labor Certification: Traditional employment-based sponsorship requiring labor certification

Common challenges and compliance considerations

Documentation requirements

Ensuring proper documentation of cap-exempt status remains one of the most critical aspects of nonprofit H-1B petitions. Common issues include:

• Insufficient evidence of affiliation between the nonprofit entity and the institution of higher education
• Unclear demonstration that basic research or applied research constitutes the fundamental activity
• Missing or incomplete tax-exempt determination letters

Specialty occupation challenges

Even cap-exempt employers must demonstrate that positions qualify as specialty occupations. Nonprofit roles sometimes face additional scrutiny regarding:

• Whether the position requires a bachelor's degree in a specific field
• How job duties align with traditional specialty occupation definitions
• Whether the nonprofit entity has sufficient work to support full-time employment

Wage and working condition compliance

Nonprofit employers must maintain compliance with LCA requirements throughout the H-1B worker's employment period. This includes:

• Paying at least the prevailing wage specified in the LCA
• Maintaining working conditions that do not adversely affect U.S. workers
• Keeping required documentation in public access files

Important note: Nonprofit employers remain fully responsible for LCA compliance and wage obligations. Cap-exempt status does not reduce these requirements.

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FAQs

Can nonprofits sponsor H‑1B?

Yes. Nonprofits that qualify as institutions of higher education, nonprofit research organizations, or governmental research organizations can sponsor H‑1B petitions under cap‑exempt status. They can file year‑round without entering the H‑1B visa lottery.

What is the salary requirement for an H‑1B non‑profit?

The non‑profit H‑1B minimum salary must meet or exceed the prevailing wage set by the Department of Labor for the occupation and location. Nonprofits cannot pay below this rate even if budgets are limited.

What is the non‑profit fee for H‑1B?

Cap‑exempt nonprofits pay the same base and fraud fees as other employers but are exempt from certain surcharges that apply to large for‑profit petitioners. They are not subject to the H‑1B non‑profit 100k fee.

Who has to pay the fee for an  H‑1B visa?

The proposed $100,000 fee would apply only to high‑volume for‑profit petitioners filing more than 100,000 H‑1B petitions annually. It does not apply to nonprofit entities, cap‑exempt employers, or institutions of higher education.

Do nonprofit H‑1B workers ever need to enter the H‑1B lottery?

No, as long as they remain with a cap‑exempt employer. If they later move to a cap‑subject employer, they must enter the annual lottery unless they previously held a cap‑subject H‑1B within the last six years.

Can a nonprofit H‑1B employee move to a for‑profit employer later?

Yes, but the new employer must file a cap‑subject petition, and the worker must be selected in the H‑1B lottery. Transfers between cap‑exempt employers remain exempt.