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 cap for regular H-1B visas is set at 65,000, with an additional 20,000 visas allocated for individuals with a U.S. master’s degree or higher.
Cap-exempt employers, on the other hand, are not subject to this annual cap. This means they can sponsor H-1B employees without being constrained by the lottery system or the cap limits. This exemption offers significant advantages for both employers and employees.
Who Qualifies as a Cap-Exempt Employer?
Cap-exempt employers generally fall into one of the following categories:
- Institutions of Higher Education: Colleges and universities are considered cap-exempt. These institutions can sponsor H-1B visas for faculty and staff without worrying about the annual cap.
- Non-Profit Entities Associated with Higher Education Institutions: Non-profit research organizations and other non-profit entities that are affiliated with or connected to institutions of higher education can also be cap-exempt. This includes entities that conduct research or provide services related to educational institutions.
- Non-Profit Research Organizations: Independent non-profit research organizations that are not necessarily affiliated with a university but are engaged in research activities may also be cap-exempt.
- Government Research Organizations: Certain government research entities are eligible for cap-exempt status as well.
Benefits of Working with Cap-Exempt Employers
For prospective employees, working with cap-exempt employers can offer several advantages:
- No Lottery Worries: Since cap-exempt employers are not bound by the annual H-1B cap, employees do not have to worry about the lottery process, which can be highly competitive.
- Year-Round Application: Cap-exempt employers can file H-1B petitions at any time of the year. This flexibility can be particularly advantageous for candidates who do not make it through the lottery in a given year.
- Greater Stability: For employees, cap-exempt status can offer greater job security and stability, as the visa application process is less contingent on annual limits.
By understanding which organizations qualify for cap-exempt status and the benefits involved, employers can navigate the H-1B visa process more effectively and find potential job opportunities that bypass the traditional cap restrictions. Whether you are an employer looking to hire skilled professionals or an individual seeking H-1B sponsorship, knowing the ins and outs of cap-exempt status can help you make informed decisions and take advantage of available opportunities.
The above has been provided by Clark Lau LLC Partner Magaly R. Cheng for educational purposes only. To see whether this applies to you, feel free to contact Clark Lau LLC.