H-1B Cap-Exempt Status: Who Qualifies and What It Means for Change

H-1B cap-exempt status can completely change the career options for foreign professionals in the United States 🇺🇸, especially those working in higher education and research-focused nonprofit organizations. It removes the pressure of the annual H-1B lottery and lets qualifying employers file all year instead of waiting for a short filing window. For people planning job changes, it can mean the difference between a smooth move and a forced return home.

This guide walks through how H-1B cap-exempt status works, who qualifies, and the step-by-step process from the first job offer through later job changes.

Core idea: What H-1B cap-exempt status actually means

Most private companies are “cap-subject,” meaning they must enter the H-1B lottery, which is limited to 85,000 visas per fiscal year. If a worker is not selected, they usually cannot start the job.

By contrast, workers employed by certain higher education institutions, nonprofit organizations tied to those schools, or research organizations may qualify for H-1B Cap-Exempt Status. In practice, this means:

• No lottery: They are not counted against the annual cap.
• Year-round filing: Employers can file H-1B petitions any time of year.
• More stable planning: Job offers are not tied to one brief filing season.

USCIS explains the basics of cap-exempt and cap-subject H-1Bs on its official H-1B Specialty Occupations page, which you can find at https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations.

Step 1: Confirming whether the employer is cap-exempt

Before anything is filed, the employer needs to decide whether it truly fits in a cap-exempt group. These are the main categories:

Institutions of higher education

These are accredited universities and colleges that offer bachelor’s degrees or higher.

Examples include:

• Public universities, such as the University of California system
• Private universities, such as Harvard University

If the school is properly accredited and grants at least bachelor’s degrees, it usually fits this group.

Nonprofit organizations linked to higher education

These are nonprofit organizations that are formally tied to a university or college. The tie can be through:

• Ownership or control by the school
• Being operated by the school
• A written affiliation agreement with the school, usually for education or research

For example, a nonprofit medical research foundation operated by a university medical school can be cap-exempt if the link is properly documented.

Nonprofit research organizations

These groups:

• Are nonprofit
• Are tax-exempt under section 501(c)(3) of the Internal Revenue Code
• Mainly do scientific or medical research

An example would be a nonprofit cancer research lab whose main work is research, not patient care or general charity work.

Governmental research organizations

These are federal, state, or local government units that carry out research as their core purpose. A state-run research lab focused on public health could fit this category.

Step 2: Proving cap-exempt status with documents

USCIS will not simply accept an employer’s claim that it is cap-exempt. The employer must send clear evidence with the H-1B petition.

Common documents include:

• IRS determination letter confirming 501(c)(3) tax-exempt status (for nonprofits)
• Accreditation proof for universities and colleges
• Organizational charts showing how the nonprofit is controlled or owned by the school
• Bylaws or governance documents
• Written affiliation agreement between the nonprofit and the institution of higher education
• A short support letter explaining how the organization meets the cap-exempt rules

According to analysis by VisaVerge.com, weak or missing affiliation documents are one of the most common reasons USCIS questions cap-exempt claims. Employers should review and, if needed, update formal agreements before filing.

Important: USCIS expects clear, documentary evidence. Weak or missing affiliation paperwork frequently leads to Requests for Evidence (RFEs) or denials.

Step 3: Confirming the job and worker also fit cap-exempt rules

Even if the employer qualifies, not every job does. USCIS looks at both the position and where the work is done.

For the position and worker, employers should confirm:

• The job is a specialty occupation, meaning it normally needs a bachelor’s degree or higher in a specific field.
• The job duties support or advance the main mission of the cap-exempt entity, such as education or research.
• The worker’s education and experience match the role.

For work location and time:

• The worker usually must spend at least half of their work time at the cap-exempt employer (for example, on campus or at the research facility).
• If the worker splits time between a cap-exempt university and a private company, the cap-exempt part should be at least 50% of the total hours for the cap-exempt claim to hold.

The employer should prepare:

• A detailed job description
• A support letter explaining how the worker’s duties directly support the school’s or research organization’s core mission

Step 4: Filing the first cap-exempt H-1B petition

Once the employer and job are confirmed as cap-exempt, the H-1B process is similar to a regular H-1B filing, but without the lottery and with more flexible timing.

Typical steps and timeframes:

1. Labor Condition Application (LCA)
   • Employer files the LCA with the U.S. Department of Labor, promising to pay at least the required wage.
   • Usual timeframe: about 7–10 days, if no issues.
2. Prepare and file Form I-129
   • Employer completes Form I-129, Petition for a Nonimmigrant Worker and the H-1B supplements.
   • The official form and instructions are available at https://www.uscis.gov/i-129.
   • Filing packet includes:
     • Filing fees and, if chosen, premium processing fee
     • Signed employer support letter
     • Evidence of cap-exempt status
     • Worker’s degrees, transcripts, and résumé
   • Send the packet to the correct USCIS service center.
3. USCIS receipt and initial work plan
   • USCIS issues a receipt notice with a case number when it receives the petition.
   • Under the AC21 portability rules, a worker already in H-1B status for another employer can start work for the new employer as soon as USCIS receives the new petition, not only after approval.
4. USCIS decision
   • Regular processing can take several weeks or months.
   • With premium processing, USCIS currently promises a decision in 15 calendar days.
   • Approvals are issued on Form I-797.

If the worker is abroad, they will usually attend a visa interview at a U.S. consulate before entering the country.

Quick process table

Step 5: Changing jobs between cap-exempt employers

Many foreign professionals in higher education and nonprofit organizations switch roles during their careers—moving, for example, from one university to another, or from a university to an affiliated research foundation.

Typical process:

1. Get a new job offer from another cap-exempt employer.
2. New employer files a new cap-exempt H-1B petition using Form I-129.
3. Once USCIS receives the case and issues a receipt, the worker can normally start under H-1B portability, provided:
   • They are currently in valid H-1B status, and
   • The new filing is done before the current H-1B ends.
4. Because both employers are cap-exempt, the worker does not need the lottery and keeps H-1B Cap-Exempt Status.

Most workers plan at least 2–3 months for the full change to allow time for filing, receipt, and potential USCIS questions.

Step 6: Moving from cap-exempt to cap-subject (private company)

Leaving a university or research role for a private tech or finance job can be much harder.

Key points:

• A cap-subject employer must get the worker selected in the H-1B lottery, unless the worker already has a cap-subject H-1B that was counted against the cap in a past year and still qualifies for reuse.
• If the worker has only ever held cap-exempt H-1B status, they are not yet counted against the cap and must go through the lottery like a new applicant.
• If the company doesn’t win a spot, the worker usually must stay with the cap-exempt employer or find another cap-exempt role to keep status.

Practical implications:

• Plan a year or more ahead for a move to a private company.
• Coordinate end dates carefully so you don’t fall out of status during any gap.
• Keep backup options at a cap-exempt employer if the lottery result is negative.

Step 7: Common problems and how to prepare

Workers and employers in higher education and nonprofit settings often run into the same problems:

• Weak proof of affiliation: Nonprofit organizations without a clear, written agreement with a university risk denials. Updating or signing a formal agreement before filing can help.
• Job duties not tied to mission: If the job looks more like routine office work and less like education or research, USCIS may question cap-exempt status. A carefully written job description that ties tasks to the school’s or lab’s mission can make a big difference.
• Timing mistakes in job changes: Filing the new H-1B petition after the old one expires, or resigning too early, can break status. Do not leave the old job until the new employer has filed.
• Work split between cap-exempt and private company: If a worker spends less than half their time at the cap-exempt site, USCIS may say they are not truly cap-exempt for that role.

Careful planning, early conversations with the employer’s HR or legal team, and clear written records are the best tools to keep H-1B Cap-Exempt Status safe over the long term.

Key takeaway: For many people in universities and research-based nonprofit organizations, cap-exempt status turns what could feel like a lottery gamble into a far more stable long-term career plan in the United States.