QUICK ANSWER
Certain employers are exempt from the H-1B annual cap of 85,000 and the lottery system. Cap-exempt employers include institutions of higher education, nonprofit research organizations, government research organizations, and nonprofit entities related to or affiliated with institutions of higher education. Cap-exempt petitions can be filed year-round. The I-129 filing fee is $1,055 plus $600 Asylum Program Fee. Premium processing costs $2,805 ($2,965 after March 1, 2026) for a 15 business day decision.
KEY TAKEAWAYS
Cap-exempt employers can file H-1B petitions year-round without entering the lottery or waiting for the registration period.
Qualifying cap-exempt employers include institutions of higher education, nonprofit research organizations, and government research organizations.
Nonprofit entities "related to or affiliated with" a higher education institution may also qualify for cap exemption.
The cap exemption applies to the employer, not the worker - a worker with a cap-exempt H-1B who later transfers to a cap-subject employer must go through the lottery.
Cap-exempt petitions are not subject to the $100,000 Presidential Proclamation fee that applies to new cap-subject H-1B petitions.
Filing fees for cap-exempt employers are the same as cap-subject: $1,055 (I-129) + $600 (Asylum Program Fee).
Premium processing is available for cap-exempt petitions at $2,805 ($2,965 after March 1, 2026).
KEY TAKEAWAYS
Cap-exempt employers can file H-1B petitions year-round without entering the lottery or waiting for the registration period.
Qualifying cap-exempt employers include institutions of higher education, nonprofit research organizations, and government research organizations.
Nonprofit entities "related to or affiliated with" a higher education institution may also qualify for cap exemption.
The cap exemption applies to the employer, not the worker - a worker with a cap-exempt H-1B who later transfers to a cap-subject employer must go through the lottery.
Cap-exempt petitions are not subject to the $100,000 Presidential Proclamation fee that applies to new cap-subject H-1B petitions.
Filing fees for cap-exempt employers are the same as cap-subject: $1,055 (I-129) + $600 (Asylum Program Fee).
Premium processing is available for cap-exempt petitions at $2,805 ($2,965 after March 1, 2026).
Table of Content
What Are H-1B Cap-Exempt Employers?
The H-1B visa has an annual cap of 85,000 visas (65,000 regular + 20,000 U.S. master's exemption). However, Congress exempted certain categories of employers from this numerical limitation. Workers employed by cap-exempt organizations are not counted against the annual cap and do not need to go through the lottery.
Cap exemption is defined under Section 214(g)(5) of the Immigration and Nationality Act. The exemption is tied to the employer, not the worker.
Learn more about the H-1B visa
Which Employers Are Cap-Exempt?
1. Institutions of Higher Education
Universities, colleges, and community colleges that meet the definition under the Higher Education Act of 1965 (20 U.S.C. 1001(a)). This includes all accredited degree-granting institutions.
2. Nonprofit Entities Related to or Affiliated With Higher Education Institutions
Organizations with a formal written affiliation agreement with a university or college. This can include university hospitals, research foundations, and associated nonprofit organizations. The affiliation must be documented and substantive.
3. Nonprofit Research Organizations
Organizations whose primary mission is fundamental research. The organization must be primarily engaged in basic research and/or applied research. Examples include think tanks, medical research institutes, and independent research laboratories.
4. Government Research Organizations
Federal, state, or local government entities primarily engaged in research. This includes national laboratories (Los Alamos, Sandia, Argonne), NIH intramural research programs, and government-funded research centers.
Key Rules for Cap-Exempt H-1B
Filing Timing
Cap-exempt petitions can be filed at any time of year. There is no registration period, no lottery, and no October 1 start date restriction. The worker can begin employment as soon as the petition is approved (or upon change of status).
Concurrent Employment
A worker can hold both a cap-exempt H-1B and a cap-subject H-1B simultaneously. For example, a university researcher can also work part-time for a private company if that company files a separate (cap-subject) H-1B petition.
Transferring to Cap-Subject Employer
If a worker leaves a cap-exempt employer for a cap-subject employer, they must be counted against the annual cap. This means going through the lottery unless they have been previously counted against the cap (within the past 6 years).
No Presidential Proclamation Fee
The $100,000 Presidential Proclamation fee introduced in September 2025 applies to new cap-subject H-1B petitions. Cap-exempt petitions are generally not subject to this additional fee.
Cap-Exempt vs Cap-Subject Comparison
Feature | Cap-Exempt | Cap-Subject |
|---|---|---|
Annual Limit | None | 85,000 |
Lottery Required | No | Yes |
Filing Window | Year-round | 90 days after selection |
Registration Fee | None | $215 |
$100,000 Proclamation Fee | Generally exempt | Required (new petitions) |
I-129 Filing Fee | $1,055 | $1,055 |
Asylum Program Fee | $600 | $600 |
Anti-Fraud Fee | $500 (initial) | $500 (initial) |
ACWIA Fee | $750-$1,500 | $750-$1,500 |
Premium Processing | $2,805 | $2,805 |
Processing Time | 3-8 months (15 days premium) | 3-8 months (15 days premium) |
How to Determine If Your Employer Is Cap-Exempt
Step 1: Check the Employer Type
Is the employer a university, college, or community college? If yes, likely cap-exempt.
Step 2: Check Nonprofit Status
Is the employer a 501(c)(3) nonprofit? If yes, determine if it is primarily engaged in research or affiliated with a higher education institution.
Step 3: Check Affiliation
Does the employer have a formal written affiliation agreement with a university? Hospital systems, research foundations, and university-affiliated organizations may qualify.
Step 4: Check Research Mission
Is the employer's primary mission fundamental or applied research? Teaching hospitals with significant research programs may qualify.
Common Cap-Exempt Employer Examples
Type | Examples |
|---|---|
Universities | Harvard, MIT, Stanford, state universities, community colleges |
University Hospitals | Johns Hopkins Hospital, UCSF Medical Center, Cleveland Clinic (if university-affiliated) |
Research Foundations | Fred Hutchinson Cancer Center, Salk Institute, Howard Hughes Medical Institute |
Government Labs | NIH, Los Alamos, Sandia, Argonne, Oak Ridge |
Affiliated Nonprofits | University-affiliated research parks, university foundations |
Step-by-Step Process for Cap-Exempt H-1B
Step 1: Confirm the employer qualifies for cap exemption. Step 2: Employer files an LCA with DOL. Step 3: Employer files Form I-129 with cap-exemption documentation. Step 4: USCIS adjudication (3-8 months standard, 15 business days premium). Step 5: Worker begins employment upon approval.
Processing Time and Costs 2026
Item | Cost / Timeline |
|---|---|
I-129 filing fee | $1,055 ($530 small employers) |
Asylum Program Fee | $600 ($300 small employers) |
Anti-fraud fee | $500 (initial petitions) |
ACWIA fee | $750 or $1,500 |
Premium processing | $2,805 ($2,965 after March 1, 2026) |
Standard processing | 3-8 months |
Premium processing | 15 business days |
Common Mistakes
1. Assuming All Nonprofits Are Cap-Exempt
Not all 501(c)(3) nonprofits qualify. The organization must be an institution of higher education, a nonprofit research organization, or affiliated with a higher education institution. A general charity or social services nonprofit is not cap-exempt.
2. Not Documenting the Affiliation
Organizations claiming cap exemption through university affiliation must provide a formal written affiliation agreement. Informal or verbal relationships are insufficient.
3. Not Planning for Cap-Subject Transfers
Workers who leave cap-exempt employers for cap-subject companies must enter the lottery unless previously counted against the cap. Plan transitions carefully.
Sources
Disclaimer: OpenSphere is not a law firm and does not provide legal advice. This article is for informational purposes only and should not be considered legal counsel. Immigration laws change frequently; always consult with a licensed immigration attorney for advice specific to your situation.
Not sure which visa is right for you? Take OpenSphere's free visa evaluation to get a personalized recommendation in minutes.
What Are H-1B Cap-Exempt Employers?
The H-1B visa has an annual cap of 85,000 visas (65,000 regular + 20,000 U.S. master's exemption). However, Congress exempted certain categories of employers from this numerical limitation. Workers employed by cap-exempt organizations are not counted against the annual cap and do not need to go through the lottery.
Cap exemption is defined under Section 214(g)(5) of the Immigration and Nationality Act. The exemption is tied to the employer, not the worker.
Learn more about the H-1B visa
Which Employers Are Cap-Exempt?
1. Institutions of Higher Education
Universities, colleges, and community colleges that meet the definition under the Higher Education Act of 1965 (20 U.S.C. 1001(a)). This includes all accredited degree-granting institutions.
2. Nonprofit Entities Related to or Affiliated With Higher Education Institutions
Organizations with a formal written affiliation agreement with a university or college. This can include university hospitals, research foundations, and associated nonprofit organizations. The affiliation must be documented and substantive.
3. Nonprofit Research Organizations
Organizations whose primary mission is fundamental research. The organization must be primarily engaged in basic research and/or applied research. Examples include think tanks, medical research institutes, and independent research laboratories.
4. Government Research Organizations
Federal, state, or local government entities primarily engaged in research. This includes national laboratories (Los Alamos, Sandia, Argonne), NIH intramural research programs, and government-funded research centers.
Key Rules for Cap-Exempt H-1B
Filing Timing
Cap-exempt petitions can be filed at any time of year. There is no registration period, no lottery, and no October 1 start date restriction. The worker can begin employment as soon as the petition is approved (or upon change of status).
Concurrent Employment
A worker can hold both a cap-exempt H-1B and a cap-subject H-1B simultaneously. For example, a university researcher can also work part-time for a private company if that company files a separate (cap-subject) H-1B petition.
Transferring to Cap-Subject Employer
If a worker leaves a cap-exempt employer for a cap-subject employer, they must be counted against the annual cap. This means going through the lottery unless they have been previously counted against the cap (within the past 6 years).
No Presidential Proclamation Fee
The $100,000 Presidential Proclamation fee introduced in September 2025 applies to new cap-subject H-1B petitions. Cap-exempt petitions are generally not subject to this additional fee.
Cap-Exempt vs Cap-Subject Comparison
Feature | Cap-Exempt | Cap-Subject |
|---|---|---|
Annual Limit | None | 85,000 |
Lottery Required | No | Yes |
Filing Window | Year-round | 90 days after selection |
Registration Fee | None | $215 |
$100,000 Proclamation Fee | Generally exempt | Required (new petitions) |
I-129 Filing Fee | $1,055 | $1,055 |
Asylum Program Fee | $600 | $600 |
Anti-Fraud Fee | $500 (initial) | $500 (initial) |
ACWIA Fee | $750-$1,500 | $750-$1,500 |
Premium Processing | $2,805 | $2,805 |
Processing Time | 3-8 months (15 days premium) | 3-8 months (15 days premium) |
How to Determine If Your Employer Is Cap-Exempt
Step 1: Check the Employer Type
Is the employer a university, college, or community college? If yes, likely cap-exempt.
Step 2: Check Nonprofit Status
Is the employer a 501(c)(3) nonprofit? If yes, determine if it is primarily engaged in research or affiliated with a higher education institution.
Step 3: Check Affiliation
Does the employer have a formal written affiliation agreement with a university? Hospital systems, research foundations, and university-affiliated organizations may qualify.
Step 4: Check Research Mission
Is the employer's primary mission fundamental or applied research? Teaching hospitals with significant research programs may qualify.
Common Cap-Exempt Employer Examples
Type | Examples |
|---|---|
Universities | Harvard, MIT, Stanford, state universities, community colleges |
University Hospitals | Johns Hopkins Hospital, UCSF Medical Center, Cleveland Clinic (if university-affiliated) |
Research Foundations | Fred Hutchinson Cancer Center, Salk Institute, Howard Hughes Medical Institute |
Government Labs | NIH, Los Alamos, Sandia, Argonne, Oak Ridge |
Affiliated Nonprofits | University-affiliated research parks, university foundations |
Step-by-Step Process for Cap-Exempt H-1B
Step 1: Confirm the employer qualifies for cap exemption. Step 2: Employer files an LCA with DOL. Step 3: Employer files Form I-129 with cap-exemption documentation. Step 4: USCIS adjudication (3-8 months standard, 15 business days premium). Step 5: Worker begins employment upon approval.
Processing Time and Costs 2026
Item | Cost / Timeline |
|---|---|
I-129 filing fee | $1,055 ($530 small employers) |
Asylum Program Fee | $600 ($300 small employers) |
Anti-fraud fee | $500 (initial petitions) |
ACWIA fee | $750 or $1,500 |
Premium processing | $2,805 ($2,965 after March 1, 2026) |
Standard processing | 3-8 months |
Premium processing | 15 business days |
Common Mistakes
1. Assuming All Nonprofits Are Cap-Exempt
Not all 501(c)(3) nonprofits qualify. The organization must be an institution of higher education, a nonprofit research organization, or affiliated with a higher education institution. A general charity or social services nonprofit is not cap-exempt.
2. Not Documenting the Affiliation
Organizations claiming cap exemption through university affiliation must provide a formal written affiliation agreement. Informal or verbal relationships are insufficient.
3. Not Planning for Cap-Subject Transfers
Workers who leave cap-exempt employers for cap-subject companies must enter the lottery unless previously counted against the cap. Plan transitions carefully.
Sources
Disclaimer: OpenSphere is not a law firm and does not provide legal advice. This article is for informational purposes only and should not be considered legal counsel. Immigration laws change frequently; always consult with a licensed immigration attorney for advice specific to your situation.
Not sure which visa is right for you? Take OpenSphere's free visa evaluation to get a personalized recommendation in minutes.
Frequently Asked Questions
Can I work at a university without going through the H-1B lottery?
Yes. Institutions of higher education are cap-exempt employers. H-1B petitions filed by universities are not subject to the 85,000 annual cap or lottery. Petitions can be filed year-round, and work can begin as soon as the petition is approved. This applies to all positions at the university, not just research or faculty roles.
Can I work at a university without going through the H-1B lottery?
Are university hospitals cap-exempt?
It depends. University hospitals that are part of the university itself are generally cap-exempt. Independent hospitals with a formal affiliation agreement with a university may also qualify as "related to or affiliated with" an institution of higher education. The affiliation must be documented with a written agreement. Hospitals without a university connection are cap-subject.
Are university hospitals cap-exempt?
Can I transfer from a cap-exempt to a cap-subject employer?
Yes, but you may need to go through the lottery. If you have never been counted against the H-1B cap, a transfer to a cap-subject employer requires lottery selection. If you were previously counted against the cap (within the past 6 years), you are generally exempt from the cap for that 6-year period. Plan transfers carefully and consult an immigration attorney.
Can I transfer from a cap-exempt to a cap-subject employer?
Do cap-exempt employers have to pay the $100,000 Presidential Proclamation fee?
Generally no. The September 2025 Presidential Proclamation fee applies to new cap-subject H-1B petitions. Cap-exempt employers filing H-1B petitions for workers at qualifying institutions are generally not subject to this additional fee. However, specific exemptions may vary. Consult with a licensed immigration attorney for the latest guidance on your specific situation.
Do cap-exempt employers have to pay the $100,000 Presidential Proclamation fee?
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