H-1B Cap Exempt Petitions

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The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations. In order to qualify for this visa, the foreign national usually has to participate in and win a lottery before even beginning the application process.

However, there are certain exemptions to this lottery (called the “cap”).

If the employer who is sponsoring you is an institution of higher education, a nonprofit organization connected to an institution of higher education, or a government research organization, the cap does not apply. If H-1B exemption has previously been granted for the beneficiary, then the beneficiary will not be subject to the cap. A beneficiary can be in H-1B status for up to 6 years, which can be extended in certain circumstances.

Institution of Higher Education

In order for an employer to be eligible as an institution of higher education, the organization should meet the following conditions:

  • Should only admit students who have a certificate of graduation from a school providing secondary education;
  • Should be legally authorized within such State to provide a program of education beyond secondary education;
  • It should be either public or nonprofit organization;
  • Should have a proper license to provide education beyond higher education;
  • Should award either a bachelor’s degree for its educational programs or awards a degree that is acceptable to take admission for a graduate or professional degree program. If the institution does not provide a bachelor’s degree, it should provide a minimum of a two-year program that is an acceptable education accreditation of such a degree.

Related or Affiliated Nonprofit Entity

The term “related or affiliated nonprofit entity” is defined, both for ACWIA and cap exemption purposes to include nonprofit entities that satisfy any one of the following conditions:

  • The nonprofit is connected or associated with an institution of higher education through shared ownership or control by the same board or federation;
  • The nonprofit is operated by an institution of higher education;
  • The nonprofit is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or
  • The nonprofit has entered into a formal written affiliate agreement with an institution of higher education that establishes an active working relationship with the institution of higher education for the purposes of research or education; and a fundamental activity of the non-profit is to directly contribute to the research or education mission of the institution of higher education.

Nonprofit or Governmental Research Organizations

A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research.

A governmental research organization is a federal, state, or local entity whose primary mission is the performance or promotion of basic research and/or applied research.

General Research

Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities.

Applied Research

Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities.


Cap-Exempt Petitions are still subject to the same general requirements, wage requirements, etc. as cap petitions.

The Application Process

The application process for cap-exempt visas is the same as cap visas after they are chosen in the lottery:

  1. Labor Certification
  2. Employer/Agent Submits Completed Form I-129
  3. Prospective Worker Outside the United States Applies for Visa and/or Admission

H1B Interview

If your H1B petition is approved, you will need to arrange a visa interview, which is why it is important to have an experienced attorney prepare you.

H-1B Renewal

The H-1B visa can be renewed for a total period of stay of up to six (6) years.

Family of H-1B Visa Holders

We can assist H-1B applicants’ spouses and unmarried children under 21 years of age to seek admission in H-4 nonimmigration classification. Family members are not eligible for employment in the United States while in H-4 status.

Premium Processing

For an additional fee, premium processing of the H1B petition can be requested for a fast-tracked decision. Specifically, USCIS guarantees they will take some adjudicative action on the case within 15 calendar days.


If you think you may be exempt from the cap, contact the experienced H-1B attorneys at The Scott Law Firm today! They can help you learn more about the H-1B process and your immigration options in general.

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