The H-1B cap is currently set by federal statute at admission of 65,000 highly specialized workers annually. For the past several years, the H-1B cap has been met within weeks – or even days – of commencement of the filing season on April 1. As a result, foreign nationals otherwise eligible for H-1B visas are excluded from US employment, sometimes for several years. Congress has deemed certain institutions worthy of an H-1B cap exemption because of the direct benefits they provide to the United States.
These cap exemptions include, but are not limited to (1) an additional 20,000 H1B petitions for foreign nationals holding an advanced degree from a U.S. institution of higher education; and (2) cap exempt petitioners including institutions of higher education, nonprofit research organizations, and government research organizations; commonly referred to as noncap employer or noncap petitioner.
Institutions of higher education are defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a).
A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research. Basic research is general research to gain more
comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but
does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest.
A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research.
H-1B cap exempt visas have no numerical limitations, which means there is no restriction on the number of visas that can be filed and approved each year. Because cap exempt H-1B visas can be filed and approved year-round, foreign nationals granted cap exempt H-1B visas can start work as soon as the case is approved and, if required, a visa is granted. This is particularly significant in the years when the H-1B cap filing season is converted to a lottery system and tens of thousands of specialized workers are shut out from U.S. employment.
The USCIS will require the cap exempt petitioner to prove its cap exempt status by a preponderance of the evidence. The USCIS does not maintain a list of noncap employers, thus at each filing the noncap petitioner must fully document its eligibility for the exemption.
A cap exempt petitioner can petition for an H-1B temporary worker any time of the year.