H-1B Cap Exemption 2023 - The Ultimate Guide

What is H1B Cap Exemption?

Usually, USCIS randomly selects 65,000 petitions in the H1B lottery and additional 20,000 petitions with advanced degrees at a master’s level or beyond every year. However, there are cases when you don’t need to go through the H1B lottery to get an H-1B visa. In such cases, you are “exempt” from the H-1B lottery. 

Cap exempt H1B example

There are a few exemption categories :

  • Higher Education Institution

  • Nonprofit Entity Affiliated with Higher Education Institutions

  • Nonprofit Research Organization or Governmental Research Organization

  • A for-profit company seeking to hire an individual for specialty occupation services to be provided to an approved non-profit

Wondering if you’re qualified for the cap-exempt H1B? Contact an immigration lawyer to book a free evaluation.

H1B Cap Exemption Processing Time

Cap-exempt status is not restricted by the H1B lottery and H1B season. H1B cap-exempt jobs are available to employees year-round. Workers can start at any time during the year. H1B cap-exempt processing time varies from case to case.

H1B Cap Exemption Transfer

H1B cap-exempt visa holders are allowed to transfer to an either exempt or non-exempt employers. When transferring to another exempt employer, the new employer needs to submit an H1B Visa Transfer petition to the USCIS. 

There are circumstances when people start working for an H-1B cap-exempt employer and wonder if they can skip the H1B lottery when transferring to a nonexempt company. Unfortunately, employees need to have non-exempt employers sponsor them to re-enter the H1B lottery if they want to transfer to a non-exempt company.

There is one exception though. If the H1B worker maintains the cap-exempt job and works concurrently with nonexempt employers part-time, then the H1B employees don’t need to re-enter the H1B lottery. 

Can my spouse and children get a dependent visa after I’m approved?

Yes. H1B holders’ spouses and children under 21 years old can apply for H-4 status.

About the Attorney:

Toni Xu is an experienced immigration attorney who represents foreign workers and businesses that wish to sponsor them.

The information on this page should not be construed as legal advice.

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