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HIB Cap Exempt: What it is & Who are Eligible?
April 9, 2022
4 mins
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In this article, we have discussed the following topics related to H1B Cap Exempt:

  • What is H1B Cap Exempt?
  • H1B Cap Exempt Employers
  • Cap Exempt Candidates
  • Cap Exempt Eligibility

Before going into the details of cap exempt eligibility, it is necessary to understand the H1B visa process as a whole.

H1B Cap Exemption: An Introduction

The H1B Cap is a popular term in the H1B visa process. It refers to the limit of H1B visas allowed per federal fiscal year. Generally, the United States Citizenship and Immigration Services (USCIS) allows the H1B cap at 85,000 petitions each year, which includes:

  • 65,000 petitions for the Regular Cap (for foreign workers with a bachelor's degree).
  • 20,000 petitions for the Master's or Advanced Degree Cap ( for foreign individuals with a master's on an equivalent advanced degree).
  • Of the 65,000 Regular Cap, 6,800 petitions are designated for the citizens of Chile and Singapore under the Free Trade Agreement.

However, there are certain exceptions to the H1B Cap, known as H1B Cap Exempt. The Cap Exempt allows foreign employees to file H1B applications without going through the H1B cap. This exclusive rule is a good option if you are a foreign employee in the US who has missed your chance of being selected for an H1B quota. Instead of waiting for the next fiscal year to apply for a job, you can choose to go from one employer to another or look for specific job positions at universities in the US.

H1B Cap Exempt is of two types:

  1. Petitions filed by Cap-Exempt employers
  2. Petitions filed on behalf of Cap-Exempt candidates

Who are the H-1B cap-exempt employers? Are all US-based organizations employing foreigners eligible for the H1B Cap-Exempt? Read on further to know about H1B Cap Exempt Employers List.

List of H1B Cap Exempt Employers

Not all employers in the US are eligible for Cap Exempt. According to the USCIS regulations, the exemption is available only to certain employers who are:

  • Institutions providing higher education.
  • Governmental research organizations whose primary objective is to promote basic research or applied research.
  • Non-profit research organization that is primarily engaged in basic or applied research.
  • Non-profit organization or an entity related to or affiliated with an institution of higher education if it satisfies any one of the following conditions:
  1. A non-profit entity associated with an academic institution offering higher education through shared ownership or control by the same board or federation.
  2. Operated by an institution offering higher education.
  3. Attached to an institution of higher education as a cooperative, subsidiary, branch, or member
  4. An institution of higher education and a nonprofit entity has signed an affiliation agreement that states they will work together on research or education.

Is there a Cap Exempt H1B Visa for Schools?

Public secondary schools can qualify for Cap Exempt if they have a formal affiliation agreement or teacher training agreement with a college or university. Simultaneously, the job offered for the foreign worker should also include services under such an agreement. A copy of the affiliation agreement should be attached along with the H-1B visa petition.

List of HIB Cap Exempt Candidates

Certain candidates are deemed exempt from the H1B Cap. They are:

  • Candidates living in the US who have been counted against the H1B cap in the last six years.
  • Students with F-1 visas who have completed a STEM degree and have been approved for the post-completion OPT period.
  • Foreign candidates who already have H1B visas.
  • Spouse and children of H1B beneficiaries
  • Beneficiaries who have been offered employment at higher education institutions
  • Certain applicants from Singapore and Chile.
  • H1B status holder who simultaneously holds jobs with an exempt and a non-exempt employer.

List of Cap Exempt Entities & H1B Applicants Eligible From Cap Exempt

The following employers can submit H1B petitions to the USCIS at any time during the year, without any restriction of the fiscal year limit:

  • Universities and related non-profit entities
  • Government research organizations
  • Non-profit research organizations

Foreign applicants are also exempt from the H1B Cap if they:

  • Are currently not in the US
  • Used to hold an H1B status in the past

However, they must provide ample evidence to ensure their employer files the H1B petition on their behalf. They must also show proof of residing in the US for the last six years. Additionally, they should not have breached their maximum stay duration.

Also read: How Does H1B Lottery Work?

Closing Note

Before filing an H1B petition, it is always safe to know if you are eligible for Cap Exempt. The information can help you save plenty of time, expenses, and money. Employers can use cap-exempt candidates to fill H-1B jobs within their organizations without being bound by the standard H-1B cap.

This article has explained everything you need to know about H1B Cap Exempt. If you have any doubts or queries regarding the same, visit TechFetch H1B team.

**Disclaimer: All information regarding H1B visa processing is subject to change. Kindly refer to the USCIS official website for the latest updates.**

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