Republican Bill Expands Crackdown on U.S. Student Visa Program

(UNITED STATES) — Cap-exempt H-1B employers can file year-round, and that flexibility is drawing attention as the Student Visa Integrity Act, introduced on January 14, 2026, signals tighter rules for F-1 students and universities.

Cap-exempt H-1B employment is not a separate visa type. It is an exemption from the annual 85,000 H-1B cap.

The exemption applies when the petitioning employer qualifies. It does not apply because the worker holds an F-1, STEM OPT, or any specific nationality.

Who is cap-exempt, and why it matters in 2026

Cap-exempt H-1B petitions are typically filed by institutions and organizations that meet statutory categories.

• Institutions of higher education, such as U.S. colleges and universities
• Nonprofit entities affiliated with an institution of higher education
• Nonprofit research organizations
• Governmental research organizations

For F-1 students, this matters because cap-subject timing can be unforgiving. Cap-exempt petitions can often be filed when the job is ready, not only after a lottery win.

That is a major planning advantage if student status rules tighten under the Department of Homeland Security regulatory posture and related legislation.

📅 Key Date: The Student Visa Integrity Act was introduced on January 14, 2026, amid DHS attention on fixed end dates for student admissions.

Qualifying institutions: what USCIS usually recognizes

USCIS generally treats the following as qualifying cap-exempt petitioners, when properly documented.

• Accredited public or private universities and colleges
• University systems and campuses filing as the same institution
• University-operated medical centers, when legally part of the institution
• Nonprofit “affiliates” that are tied to the university by ownership, control, or a formal written relationship
• Research entities that primarily conduct research, including basic or applied research

The cap exemption is a petitioning-employer analysis. It is not a job-title analysis. The role must still qualify as a specialty occupation.

The “related to” or “affiliated with” standard, in plain language

Most cap-exempt issues arise with nonprofits that are not themselves universities. USCIS focuses on whether the organization is a nonprofit entity affiliated with a qualifying institution.

USCIS looks for a formal relationship, not a casual partnership.

Common evidence includes:

• Proof of 501(c)(3) nonprofit status
• Articles of incorporation and bylaws
• An affiliation agreement, MOU, or operating agreement
• Evidence of university control, such as board seats or governance rights
• Proof the nonprofit works closely with the university’s education or research mission

A separate pathway exists for nonprofit or governmental research organizations. The focus then is whether research is a primary mission, not a secondary activity.

Advantages of cap-exempt H-1B petitions

Cap-exempt H-1B petitions can be a pressure valve in a year of policy change affecting students and schools.

Key advantages include:

• No lottery and no March registration requirement
• Year-round filing, including summer and mid-year start dates
• Better alignment with academic calendars and grant cycles
• Options for F-1 students who may face tighter grace periods or school transfer limits
• Continued H-1B extensions beyond six years, when a cap-exempt job continues

Employers still must complete the Labor Condition Application (LCA) process. They must also meet wage and posting rules.

H-1B cap-exempt vs cap-subject at a glance

⚠️ Employer Alert: Cap-exempt does not remove wage, LCA posting, or public access file duties. DOL audits can still occur.

Cap-exempt status follows the employer, not the employee

Many employees think an “H-1B” is either cap-exempt or cap-subject forever. That is not how USCIS treats it.

A worker employed by a cap-exempt university can hold H-1B status. If that worker later moves to a private company, the new employer may be cap-subject.

The new employer may need a lottery selection, unless the worker has already been counted toward the cap in the past.

This distinction is becoming more important as universities prepare for potential compliance and reporting changes tied to student visa scrutiny.

What happens when moving to a cap-subject employer

A move from cap-exempt to cap-subject usually falls into one of three buckets.

1. Already counted: The worker previously held a cap-subject H-1B approved and counted. A later cap-subject transfer may be filed without a new lottery.
2. Not counted: The worker has only held cap-exempt H-1B. The private employer generally needs a lottery selection.
3. Concurrent H-1B: A worker may hold a cap-exempt H-1B and take a second job. The cap-subject job can be concurrent. It may still require cap counting.

Timing can be tight for F-1 students on OPT. A cap-exempt H-1B can avoid a cap-gap dependency. A cap-subject filing often cannot.

Compliance basics: specialty occupation and prevailing wage still apply

Cap exemption does not reduce specialty occupation scrutiny. The petition must still show a degree requirement tied to the job duties.

The employer also must pay at least the higher of the prevailing wage or the actual wage. Wage levels run from Level I to Level IV.

Level I roles face more USCIS scrutiny in many filings. A university department hiring an entry-level analyst at Level I should document supervision and training.

It should also explain the degree field link to duties.

FY 2027 context: dates that still matter for many workers

Even in cap-exempt hiring, FY 2027 remains relevant. Many workers will later want the option to join cap-subject employers.

Cap-exempt employers can file outside this window. Cap-subject employers usually cannot.

💼 Employee Tip: Ask whether your employer is cap-exempt by category, and request the affiliation evidence summary before the petition is filed.

Why the Student Visa Integrity Act matters to H-1B planning

The Student Visa Integrity Act and related DHS efforts focus on program integrity and enforcement. That can change how students plan their U.S. timelines.

A move away from open-ended “Duration of Status” toward a fixed end date model can create more frequent status touchpoints. Those touchpoints can include extensions, amended documents, and travel planning.

Travel risk can also rise when enforcement messaging increases. Students moving from F-1 to H-1B should plan for visa stamping and port-of-entry questions.

They should carry LCAs, offer letters, and recent pay evidence.

Some families also consider “backup” pathways. Investor visa planning can arise in parallel, especially for founders. That is a separate legal track, with separate eligibility and funding rules.

How to verify cap-exempt status before you accept the job

Cap-exempt errors can be expensive. A wrong cap-exempt filing can lead to denial. It can also create status gaps.

Practical verification steps include:

• Confirm the employer is a university, or obtain proof of nonprofit affiliation
• Ask whether prior H-1B filings were cap-exempt and why
• Review whether the worksite and supervision are controlled by the cap-exempt entity
• Confirm the role is a specialty occupation with a specific degree field
• Check the SOC code and wage level using flcdatacenter.com

Government sources to track, and what to save

Track legislation in Congress and save dated versions. Track DHS and State messaging, but separate statements from binding rules.

For regulatory actions, confirm whether a rule is proposed or final. The Federal Register publication date and effective date matter. Keep copies of agency FAQs that are in effect on the filing date.

Employers should save: the LCA, posting notices, wage system documentation, and the cap-exempt affiliation evidence. Employees should save: I-797 approval notices, I-94 records, and offer letters.

Employers should confirm cap-exempt eligibility before filing, and run prevailing wage checks in January 2026 for planned hires.

Employees should map FY 2027 goals now, especially if a future move to cap-subject work is likely, and monitor DHS updates weekly through March 2026.

📋 Official Resources:

• H-1B Program: uscis.gov/h-1b-specialty-occupations
• Cap Season: uscis.gov/h-1b-cap-season
• Prevailing Wages: flcdatacenter.com