H-1B ​Cap ​Exemption

Some foreign workers are H-1B cap-exempt beneficiaries because they have been counted before, and some U.S. employers are cap-exempt petitioners.

Foreign workers who already hold H-1B visa status in the U.S. are exempt from the cap if they were counted against the cap when their status was first granted. This includes any worker already issued an H-1B visa abroad who has entered the U.S. on that visa to work for the sponsoring employer, and any worker who was granted a change of status to H-1B, evidenced by a Form I-797 approval notice with a replacement I-94 portion. It does NOT include workers who currently hold, and have only held, H-1B status in a cap-exempt job, such as a faculty or researchers at a university or government research institution, or physicians at teaching hospitals.

Workers ​In ​H-1B ​Status

Workers in H-1B status who were counted against the cap when they first obtained H status are exempt from the cap when seeking to extend their stay or change jobs. This even applies to workers who may be currently outside the U.S., so long as they have held H-1B visa status during the past six years, have not exhausted the full six years, and they have not spent a full year outside the U.S.

Non-profit ​H-1B Petitioner ​Requirements

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Certain non-profit employers are exempt from the H-1B cap, but not all types of non-profits qualify. The exemption only covers I. non-profit institutions of higher education, II. non-profit research institutions, III. government research institutions, and IV. non-profits which are formally affiliated with a cap-exempt institution of higher education. The types of non-profits that qualify for this exemption have been construed narrowly: At present, most non-profit service, community, policy and arts organizations do not qualify for H-1B cap exemption. Unless the non-profit U.S. employer is primarily devoted to research, or is formally affiliated with a university, it does not qualify as a cap-exempt H-1B petitioner. What does “formally affiliated with an institution of higher education” mean? Per the final rule  published in November 2016, effective on January 17, 2017, a qualifying affiliate must meet one of the following four criteria:

• 1. The nonprofit entity is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation; (50% ownership in common)
• 2. The nonprofit entity is operated by an institution of higher education;
• 3. The nonprofit entity is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or (100% ownership & control in common)
• 4. The nonprofit entity has entered into a formal written affiliation agreement with a institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education. (written affiliation agreements & shared fundamental purpose)

Cap ​Exempt ​H-1B ​Visas ​for Elementary & Secondary Schools

Public secondary schools do NOT qualify for cap-exemption unless they have a formal affiliation agreement or teacher-training agreement with a college or university, and the offered job includes providing teacher-training services under such an agreement, but many school districts do have such affiliations. The H-1B petition must include a copy of the executed affiliation agreement.

The H-1B cap exemption also covers certain professionals employed by a for-profit entity but working at an exempt location, as long as their work continues to serve the core mission of the institution, such as a physicians’ practice group affiliated with, and located at, a university teaching hospital.

Have more questions about H-1B cap exemptions? Contact Karin Wolman for a consultation today!