The Difference Between Cap Subject and Cap Exempt H-1B Status

Cap Exempt H-1B Status
December 5, 2022

If a foreign national wants to work in the United States, they must have a valid immigration status that permits them to be employed. Typically, this requires someone else to petition a work authorization for them, such as an employer. For example, the H-1B visa is a very common visa status in the United States. For workers to qualify for this visa status, they must have obtained at least a bachelor’s degree or its equivalent and have a US employer sponsoring them for a position that requires a minimum of a four-year degree.

Employers that sponsor an H-1B employee must pay all the fees and costs associated with the process. Additionally, these employers may not change an H-1B worker’s position or employment location without an amendment petition. To file this amendment, employers must complete Form I-129 and file it with the United States Citizenship and Immigration Services (USCIS).

H-1B status is granted initially for three years, but sponsors can renew it in increments of either one or three years. However, they cannot exceed the status’s maximum six-year period. Once the employee has held H-1B status for six years, they must leave the US if they have not obtained another immigration status.

Due to the popularity of H-1B visas, there is a limit to the number available each year. Unfortunately, the number of applicants for these visas far outnumbers the available ones each year. Therefore, an electronic lottery determines who will obtain a visa every March. Once chosen, the registrants will have 90 days to file their H-1B petitions with the USCIS. Registrants who did not receive a visa must leave the US unless they possess valid immigration status. However, there are exceptions to the cap and the lottery process. Here are some of these exemptions:

  • Foreign nationals with H-1B status who want to change employers do not count in the lottery. Instead, the new employer must file the H-1B petition with the USCIS before the employee starts working.
  • A prospective employer of a foreign national is not required to enter the lottery to file an H-1B petition if the foreign national has held H-1B status in the previous six months.
  • Some employers, such as teaching hospitals, universities, and government research institutions, are not subject to the H-1B cap.
  • Another employer, typically part-time, can employ an H-1B employee, and the second employer is not required to participate in the lottery. However, they must file a concurrent H-1B petition with the USCIS. In addition, the employee must continue working for the first employer.

If a foreign national cannot obtain H-1B status, they may have other options for remaining in the United States. For example, they may qualify for green card sponsorship, a different non-immigrant status, or employer-authorized dependent status. If you are trying to hire a foreign national and are unsure what immigrant status would be best, you should discuss your situation with legal counsel.

When hiring foreign nationals, employers must remember to begin the employment eligibility verification process (Form I-9). Unfortunately, this process often proves complicated because of the many documents these employees may present. Furthermore, Form I-9 experiences frequently changing regulations, further complicating matters.

The best way to ensure you remain in compliance with the Form I-9 regulations is to use an electronic I-9 management system. This system will guide you through the entire process, ensuring that you complete the form correctly and consistently each time and safely store the documents.

Learn more about automating your employment eligibility verification and ensuring compliance with I-9 Compliance.