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Understanding Cap-Exempt H-1B Employers: What You Need to Know

The H-1B visa program is a popular route for foreign professionals to work in the United States, but it comes with an annual cap limiting the number of visas available. However, not all H-1B employers are subject to this cap and there are options to avoid it.

What is a Cap-Exempt H-1B Employer?

In the H-1B visa program, there are two types of employers: cap-subject and cap-exempt. Cap-subject employers must compete for a limited number of H-1B visas each fiscal year, which are typically allocated through a lottery system. The annual...

U.S. Citizenship and Immigration Services (USCIS) has reported movement in the numbers of O-1A (work visas for individuals of extraordinary ability) and EB-2 (permanent residency for accomplished individuals in areas of national interest) visa applications and approvals since Biden administration guidance was released in early 2022, along with an overall increase in applications for national interest waivers, although the approval rate for the latter declined. The approval rate for both O-1A and EB-2 applications remained at 90 percent or above in fiscal years (FYs) 2018 through 2023. Below are highlights.

O-1A Visas: Applications and Approvals Increased

According to reports...

Each year, there is a limited number of H-1B Specialty Occupation visas available for employers offering jobs to professionals in the United States. In order for one to qualify for an H-1B visa, there must be a US employer; a specialty occupation job offer, i.e., one where the job duties cannot be performed by someone without a degree in a specific field of study; an offered wage that meets the Department of Labor requirements; and a qualified employee.

Due to the popularity of this visa, each fiscal year, USCIS has been running out of visas and therefore has had to...

USCIS just announced that the period for employers to register employees for the upcoming H-1B lottery will run from March 6, 2024 to March 22, 2024. Employers may set up their accounts as early as February 28, 2024. Having such accounts set up will offer employers a chance to file certain H-1B forms electronically online.

One important update will include a change to the lottery system. Starting this year, the system will be “beneficiary-centric.” That is, in the past, USCIS would select candidates per registration. The new system will select candidates based on unique passport or travel document numbers...

H-1B status allows a professional to be in the United States to work for a specific employer, at a specific location, and in a specific position. In order for this individual to travel outside of the United States and reenter (or enter the United States for the first time) in H-1B status, the individual must also have an unexpired H-1B visa stamp in one’s passport. (Canadians are exceptions).

Since 2004, individuals must apply for an H-1B visa stamp at a U.S. Consulate abroad which has also included an in-person interview. This does not matter whether it is the first...

Employers are required to have employees complete Form I-9 when onboarding an employee. This is the federal government’s mechanism for ensuring that employers only hire individuals with employment authorization. The Form I-9 has been around since 1986. As of August 1, 2023, the US Citizenship and Immigration Services (USCIS) issued a new Form I-9. Employers may use the current version of the Form I-9 (edition dated 10/19/2019) until October 31, 2023. Thereafter, employers must use the 8/1/2023 edition.

One welcome change to the Form I-9 process is an option for employers to verify employee documents remotely. Other than special accommodations made...