Cap-Exempt H-1B Employers: What It Means, How to Find

Who qualifies

Federal law, 8 U.S.C. 1184(g)(5), exempts workers employed at these employers:

• An institution of higher education, as defined in the Higher Education Act
• A nonprofit entity related to or affiliated with such an institution
• A nonprofit research organization
• A governmental research organization

What "related or affiliated" means

The regulation lists several ways a nonprofit can be connected to a university:

• Shared ownership or control
• Operated by the institution
• Attached to it as a member, branch, cooperative or subsidiary
• A formal written affiliation agreement, if the nonprofit directly contributes to the university's research or education mission

What counts as a research organization

A nonprofit qualifies when a fundamental activity is basic or applied research. A government organization qualifies when a fundamental activity is performing or promoting such research.

A government research organization can be federal, state or local.

This "fundamental activity" test came from the H-1B modernization rule, which took effect January 17, 2025. Research no longer has to be the primary mission.

You may not need to work for the exempt employer directly

You can also be cap-exempt if you work for another employer but spend at least half your work time at a qualifying entity.

Your duties must directly further that entity's education or research purpose. USCIS looks at the duties, not just the physical location.

Why cap-exempt jobs matter

The regular cap is 65,000 new H-1Bs a year, plus 20,000 for US master's degree holders. Cap-subject employers can only file for new workers after a lottery selection.

Cap-exempt employers can file at any time of year. They do not need a lottery selection.

This helps people who were never selected in the lottery, and people who need to move fast.

The catch: leaving a cap-exempt job

If you leave cap-exempt employment for a cap-subject employer, you may be counted against the cap then. This applies if you were not counted before.

In that case, the new employer usually needs a lottery selection first. Cap-subject start dates are October 1 or later.

If you were already counted against the cap in the past 6 years, you generally are not counted again.

Working a second, cap-subject job

A cap-exempt worker can also work concurrently for a cap-subject employer while keeping the cap-exempt job.

The second petition cannot run longer than the cap-exempt employment. If the cap-exempt job ends, USCIS may revoke the cap-subject petition.

Working at a university on OPT

You can work at a university on OPT if the job relates to your degree. That includes staff, research and lecturer roles, not only faculty jobs.

For STEM OPT, the employer must use E-Verify and sign a training plan on Form I-983. Many universities do.

A university can then file a cap-exempt H-1B for you at any time of year. You do not have to wait for the lottery.

If you later move to a company, it will usually need a lottery selection first, as explained above.

STEM OPT is ending and you were not selected

For FY 2027, USCIS said in July 2026 that it had received enough petitions to meet the cap, and no second selection round was held. If your OPT is running out, a cap-exempt job is one of the few ways to keep working without a lottery.

• Look for jobs at universities, affiliated nonprofits and research organizations that file cap-exempt H-1Bs.
• Look for jobs where you would spend at least half your time at a qualifying entity, as described above.
• Check other visas if you qualify: O-1 for extraordinary ability, TN for Canadians and Mexicans, E-3 for Australians, H-1B1 for Chileans and Singaporeans.
• Ask about L-1 if your employer has an office abroad. You generally need one year of work there first.
• Register again in the next lottery. Under weighted selection, a higher wage level means more entries.
• Go back to school only with care. See our Day 1 CPT guide for the risks.

Plan before your end date

Each option has its own rules and timing. Talk to an attorney before your OPT ends, not after.

To find openings, match sponsor jobs to your resume and filter for universities and research employers.

How to find cap-exempt employers

1. Start with universities and colleges, including their staff and research roles, not only faculty jobs.
2. Look at teaching hospitals and research institutes linked to universities. Whether each one qualifies depends on its documents.
3. Search the USCIS H-1B Employer Data Hub by employer name, city, state or industry code. It covers fiscal years 2009 through the third quarter of 2026.
4. Browse our H-1B sponsors list and H-1B jobs by role. Every employer there filed H-1B petitions in 2025.
5. Ask the recruiter directly whether the employer files cap-exempt petitions.

Unsettled points

Cap-exempt status is not automatic. It depends on the employer's documents and, for affiliates, the exact relationship with the university.

Being cap-exempt also does not answer the $100,000 fee question. See our H-1B $100,000 fee page.

This is general information, not legal advice. Confirm your situation with an immigration attorney.

Questions

Sources

• 8 U.S.C. 1184 (Cornell LII)
• 8 CFR 214.2 (Cornell LII)
• USCIS: H-1B Specialty Occupations
• USCIS: H-1B Cap Season
• Holland & Hart: DHS Finalizes H-1B Modernization Rule
• Manifest Law: Cap-Exempt H-1B Guide
• USCIS: H-1B Employer Data Hub
• Ogletree: USCIS completes fiscal year 2027 H-1B lottery
• DHS Study in the States: STEM OPT Hub

Read next

FY2027 H-1B Cap Registration: Numbers, Dates, ChangesH-1B Change of Employer Checklist (2026)H-1B Transfer: How Changing Employers Works