Cap Exempt H-1Bs: Employment Options for Nonprofits, Universities, and Research Organizations

04. Dec. 2020

The H-1B is the most common form of temporary work authorization, however the number of new petitions accepted each year for processing is capped at 85,000, specifically 20,000 for those with advanced US degrees, and the remaining 65,000 for all other applicants. In recent history, USCIS has received more applications than the 85,000 “cap,” forcing several thousand hopefuls to try again next year. However, there are ways around the cap, namely the “cap-exempt” petition, which allows certain organizations to sponsor temporary workers without first entering them into the H-1B lottery. Regulations state that the exemptions are available when a foreign national is employed by or has an offer of employment from:

  1. An institution of higher education or a related or affiliated nonprofit entity; or
  2. A nonprofit research organization or a governmental research organization.


Institutions of Higher Education:

Generally, an institution of higher education is one which: (1) admits students who have completed high school (secondary school) or the equivalent; (2) is legally authorized to provide a program of education beyond secondary education; (3) grants bachelor’s degrees or provides 2 year programs that are acceptable for full credit toward a bachelor’s degree, or awards degrees acceptable for admission to a graduate or professional degree program; (4) is a public or other nonprofit institution; and (5) is accredited by a nationally recognized accrediting agency or association.

Affiliated Non-Profit Entities

A nonprofit entity is considered to be related to or affiliated with an institution of higher education if it: (1) is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation; (2) is operated by an institution of higher education; (3) is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or (4) has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education to achieve the entity’s goals.

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.

Further, even if a foreign national is not directly employed by an institution of higher education, affiliated, non-profit, or governmental or nonprofit research organization, they may still qualify for a cap-exempt petition if they will spend the majority of their time performing job duties there and their job duties directly and predominately further the essential purpose, mission, objectives or functions of the qualifying institution or organization.

Foreign nationals may also work for both a cap-exempt employer, and a cap-subject employer concurrently, however the cap-subject employment validity period will be limited to that of the cap-exempt petition. Further, if the cap-exempt employment ends, the foreign national will be subject to the annual cap before they can accept cap-subject employment if they were not previously counted within the previous six years.

If you are interested in learning more about how a cap-exempt H-1B petition could work for you, contact us today.