As of October 21, 2026, an H-1B petition is cap-exempt, meaning the annual cap does not apply, when the worker is employed, or offered a job, at a US institution of higher education, a nonprofit related to or affiliated with one, a nonprofit research organization or a governmental research organization (8 U.S.C. 1184(g)(5)). These petitions do not count against the annual H-1B cap, so they skip the registration and lottery that cap-subject petitions must go through (USCIS, H-1B Cap Season). A cap-exempt H-1B worker can also add a second H-1B job with a private company without a lottery, provided the cap-exempt job continues (USCIS, H-1B Specialty Occupations).
If you were not selected in the lottery, our guide to options after losing the H-1B lottery covers the alternatives.
- INA 214(g)(5)(A) and (B) exempt H-1B workers employed at institutions of higher education, related or affiliated nonprofits, nonprofit research organizations and governmental research organizations from the H-1B cap.
- Cap-exempt petitions do not need an H-1B registration selection; only cap-subject petitions go through the lottery.
- Since January 17, 2025, a nonprofit or government body qualifies as a research organization if research is a "fundamental activity", even if research is not its primary mission.
- A worker not directly employed by a qualifying institution can be cap-exempt if they spend at least half of their work time on duties at that institution that further its mission.
- A cap-exempt H-1B worker can take concurrent cap-subject H-1B employment without a lottery while the cap-exempt job continues.
- Cap-exempt employers have no exception from the $100,000 proclamation payment, but two federal courts have vacated the policies implementing it and DHS says it is complying.
- The proposed $103,265 H-1B fee (91 FR 54817, August 25, 2026) would apply only to cap-subject petitions, not cap-exempt ones.
What is a cap-exempt H-1B?
The H-1B cap is 65,000 new visas or statuses a year, plus 20,000 more for people with a master's or higher degree from a US institution of higher education (USCIS, H-1B Specialty Occupations). Congress exempted four kinds of employment from those limits. The statute says the cap does not apply to an H-1B worker who:
"(A) is employed (or has received an offer of employment) at an institution of higher education (as defined in section 1001(a) of title 20), or a related or affiliated nonprofit entity; (B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization;" 8 U.S.C. 1184(g)(5)(A) and (B) (INA 214(g)(5))
The practical difference is timing. Cap-subject employers must register each prospective worker electronically, wait for selection, and request a start date of October 1 or later (USCIS, H-1B Cap Season). A cap-exempt employer does not need a selected registration (USCIS, H-1B Cap Season).
Everything else still applies: a specialty occupation, a certified Labor Condition Application, and an initial stay of up to 3 years, extendable to a total of 6 (USCIS, H-1B Specialty Occupations).
Which employers qualify as cap-exempt H-1B employers?
The definitions are in 8 CFR 214.2(h)(8)(iii)(F), which borrows several of them from the ACWIA fee rules at 8 CFR 214.2(h)(19) (8 CFR 214.2, eCFR).
Institutions of higher education. These are defined by section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a) (8 CFR 214.2, eCFR). That definition requires, among other things, a public or other nonprofit institution that is accredited (or preaccredited) and awards a bachelor's degree or offers at least a two-year program creditable toward one (20 U.S.C. 1001(a)). A for-profit college does not meet it.
Nonprofits related to or affiliated with a university. A nonprofit qualifies if it meets any one of four conditions: shared ownership or control by the same board or federation; being operated by the institution; being attached to it as a member, branch, cooperative or subsidiary; or a formal written affiliation agreement that sets up an active working relationship for research or education, where a fundamental activity of the nonprofit is to directly contribute to the institution's research or education mission (8 CFR 214.2, eCFR).
Nonprofit research organizations. A nonprofit qualifies when "a fundamental activity" is basic or applied research (8 CFR 214.2, eCFR). The nonprofit must have IRS tax-exempt status under section 501(c)(3), (c)(4) or (c)(6) of the Internal Revenue Code (8 CFR 214.2, eCFR).
Governmental research organizations. A government body qualifies when a fundamental activity is performing or promoting basic or applied research, and it can be a federal, state or local entity (8 CFR 214.2, eCFR).
What changed in 2025?
DHS's final rule Modernizing H-1B Requirements, effective January 17, 2025, replaced "primarily engaged" and "primary mission" with "fundamental activity", so organizations that conduct research but are not primarily engaged in it can now qualify (89 FR 103054).
Can you be cap-exempt if a university is not your employer?
Yes, in one situation. A worker who is not directly employed by a qualifying institution is still cap-exempt if they:
"will spend at least half of their work time performing job duties at a qualifying institution, organization, or entity and those job duties directly further an activity that supports or advances one of the fundamental purposes, missions, objectives, or functions of the qualifying institution" 8 CFR 214.2(h)(8)(iii)(F)(4)
Work "at" the institution can include telework, remote work or other off-site work in the United States, and the regulation says USCIS will focus on the job duties rather than where they are physically performed (8 CFR 214.2, eCFR).
When a commenter asked about researchers at for-profit companies whose salaries are mostly funded by nonprofit projects, DHS declined to add a separate rule and answered:
"DHS places the focus on the work being performed by the beneficiary, rather than who pays the beneficiary for that work." 89 FR 103054, 103106 (Dec. 18, 2024)
A for-profit company is not cap-exempt in its own right, and whether a placement meets the half-time test is a question for your attorney.
How does concurrent cap-exempt and cap-subject H-1B employment work?
You can hold two H-1B jobs at once:
"If you are currently employed in a cap-exempt position, you may engage in concurrent employment in a cap-subject position as long as you will continue to be employed in the cap-exempt position." USCIS, H-1B Specialty Occupations (last reviewed 09/21/2026)
You may begin the cap-subject job once that employer properly files a non-frivolous Form I-129, or on the requested start date if later (USCIS, H-1B Specialty Occupations). The concurrent employment does not make you subject to the cap (8 CFR 214.2, eCFR).
The second employer has to show three things: you are in valid H-1B status under a cap exemption, your cap-exempt job is expected to continue after the new petition is approved, and you can reasonably perform both jobs at the same time (8 CFR 214.2, eCFR). The concurrent approval cannot run past the validity of your cap-exempt H-1B (8 CFR 214.2, eCFR).
If the cap-exempt job ends before its approved end date, you become subject to the cap unless you were previously counted against it within the relevant six-year period or another exemption applies, and USCIS may revoke the cap-subject petition (8 CFR 214.2, eCFR).
What happens if you leave a cap-exempt job for a company?
It depends on whether you have ever been counted against the cap. The statute says a worker leaving a university or affiliated nonprofit job who has not previously been counted is counted the first time they work for a non-exempt employer (8 U.S.C. 1184(g)(6)). The regulation applies the same rule to all cap-exempt employment (8 CFR 214.2, eCFR).
USCIS says that when you move to cap-subject employment, the new employer's petition is subject to the cap and the employer must first submit an electronic registration (USCIS, H-1B Specialty Occupations). The exception is a worker already counted against the cap within the previous six years, who generally is not counted again (8 U.S.C. 1184(g)(7)); USCIS likewise says a previously counted worker does not become subject to the cap again during the same H-1B validity period (USCIS, H-1B Specialty Occupations).
Does the $100,000 H-1B fee apply to cap-exempt employers?
On paper, yes for some petitions; in practice, it is not in effect for now. Proclamation 10973 required a $100,000 payment with certain H-1B petitions filed at or after 12:01 a.m. Eastern on September 21, 2025 (USCIS, H-1B Specialty Occupations; Proclamation 11069, 91 FR 60497). Proclamation 11069, signed September 18, 2026, extended the restriction to September 21, 2027 (Proclamation 11069, 91 FR 60497). Neither proclamation has an exception for universities or research organizations; the only exception is a national interest determination by the Secretary of Homeland Security (Proclamation 10973, 90 FR 46027; Proclamation 11069, 91 FR 60497).
Under USCIS's guidance, the payment applied to petitions for workers outside the United States without a valid H-1B visa, or petitions requesting consular or port-of-entry notification. It did not apply to an amendment, change of status or extension for someone inside the United States when USCIS granted it (USCIS, H-1B Specialty Occupations).
The courts have blocked the payment for now. On June 8, 2026, the US District Court for the District of Massachusetts vacated the agency guidance implementing the payment in State of California v. Mullin, and on July 24, 2026 the First Circuit denied the government's request for a stay; DHS says it will comply but still plans to collect the payment if the order is lifted (USCIS, H-1B FAQ). On September 30, 2026, the Northern District of California also vacated those policies and enjoined their enforcement, including under Proclamation 11069, in Global Nurse Force v. Trump (N.D. Cal. order, Dkt. 130). The government appealed that order to the Ninth Circuit on October 9, 2026 (notice of appeal, Dkt. 132). Our status update on the $100,000 H-1B fee tracks the litigation.
The separate proposed fee is different. DHS's August 25, 2026 proposal would add a $103,265 fee for H-1B cap-subject petitions, including advanced degree exemption petitions (91 FR 54817). DHS wrote:
"DHS is proposing to not require the fee to be paid with a petition for a cap-exempt H-1B nonimmigrant." 91 FR 54817, 54831 (Aug. 25, 2026)
Comments closed September 24, 2026, and the rule is not final (91 FR 54817). See our post on the proposed additional H-1B fee.
| Measure | Applies to cap-exempt petitions? | Status as of October 21, 2026 |
|---|---|---|
| $100,000 payment (Proclamations 10973 and 11069) | No exception for cap-exempt employers | Implementing policies vacated by two district courts; government appealing |
| $103,265 fee (91 FR 54817) | No, cap-subject petitions only | Proposed; comments closed; not final |
| ACWIA training fee ($1,500 or $750) | No, cap-exempt employers are exempt | In effect |
What other costs and rules differ for cap-exempt employers?
ACWIA fee. Institutions of higher education, related or affiliated nonprofits, and nonprofit or governmental research organizations do not pay the ACWIA training fee (8 CFR 214.2, eCFR). For other employers it is $1,500 or $750, depending on how many workers they employ (USCIS, Form G-1055 Fee Schedule, edition 10/16/26).
Filing and asylum fees. The fee schedule lists a $460 base H-1B fee for small employers and nonprofits, against $780 on paper or $730 online for other petitioners, and a $0 Asylum Program Fee for nonprofit petitioners (USCIS, Form G-1055 Fee Schedule, edition 10/16/26). The $500 Fraud Prevention and Detection fee for initial approvals and changes of employer is listed without a separate nonprofit rate (USCIS, Form G-1055 Fee Schedule, edition 10/16/26).
Prevailing wage. For employees of these institutions, the statute says the prevailing wage level "shall only take into account employees at such institutions and organizations in the area of employment" (8 U.S.C. 1182(p)(1)).
Could the cap-exempt rules change?
Possibly. DHS's planned rule "Reforming the H-1B Nonimmigrant Visa Classification Program" (RIN 1615-AD00) would revise eligibility for cap exemptions, add scrutiny for employers that have violated program requirements and increase oversight of third-party placements (reginfo.gov, RIN 1615-AD00). The Office of Information and Regulatory Affairs (OIRA), part of the White House Office of Management and Budget, received it for review on August 24, 2026, and it is listed as a proposed rule still under review (reginfo.gov, EO 12866 rules under review). No proposed rule under that RIN has appeared in the Federal Register (Federal Register API, RIN 1615-AD00), so its details are not public. When it is published, it will be a proposal open for comment, not a final rule. Our post on the immigration rules under White House review follows it.
What this means for you
For researchers and academic staff, a cap-exempt H-1B means no March registration and no October 1 start date. The concurrent route adds industry work, but the private job depends on the university job continuing.
The cap-exempt H-1B is still a temporary visa with a six-year limit. If you plan to stay longer, a green card is the next step; our guide to EB-1B for outstanding professors and researchers explains one common route.
- Ask your employer which cap-exempt category it is filing under: university, affiliated nonprofit, nonprofit research or governmental research.
- If you are not employed by the university directly, confirm in writing that at least half of your work time supports its mission.
- Before adding a concurrent private-sector job, check that your cap-exempt role will continue.
- Before leaving a cap-exempt job, find out whether you have ever been counted against the cap.
Where to start
A cap-exempt H-1B can be a base for a green card case. Our free evaluation shows which self-petition routes your profile may already fit, and Frank, our AI assistant, finds real opportunities for the criteria you are missing. Petitions are reviewed and filed by our partner law firm, Lai & Turner.
Sources
All checked October 21, 2026.
- 8 U.S.C. 1184, Admission of nonimmigrants (govinfo, 2024 edition). Statutory cap exemptions in 1184(g)(5), counting on leaving cap-exempt employment in (g)(6), and the previously counted rule in (g)(7).
- 20 U.S.C. 1001(a), Institution of higher education (govinfo, 2024 edition). Definition used for the university cap exemption.
- 8 U.S.C. 1182(p), Computation of prevailing wage level (govinfo, 2024 edition). Prevailing wage for employees of universities and research organizations.
- 8 CFR 214.2(h)(8)(iii)(F) and (h)(19), eCFR (current text). Definitions of qualifying employers, the half-time rule, concurrent employment, loss of the exemption and the ACWIA fee exemption.
- Modernizing H-1B Requirements, Final Rule, 89 FR 103054, FR Doc. 2024-29354 (govinfo) (December 18, 2024). The "fundamental activity" change, effective January 17, 2025, and DHS's response on who pays the worker.
- USCIS, H-1B Specialty Occupations (last reviewed September 21, 2026). Cap numbers, concurrent employment, moving to cap-subject employment and who is subject to the $100,000 payment.
- USCIS, H-1B Cap Season (last reviewed September 21, 2026). Registration and October 1 start date for cap-subject petitions; cap-exempt examples.
- USCIS, H-1B FAQ (last updated July 28, 2026). Massachusetts vacatur, First Circuit stay denial and DHS's position.
- Proclamation 10973, Restriction on Entry of Certain Nonimmigrant Workers, 90 FR 46027 (govinfo) (September 24, 2025). The original $100,000 restriction and its national interest exception.
- Proclamation 11069, Restriction on Entry of Certain Nonimmigrant Workers, 91 FR 60497 (govinfo) (September 23, 2026). Extension to September 21, 2027 and the national interest exception.
- Global Nurse Force v. Trump, No. 25-cv-08454-HSG (N.D. Cal.), Order, Dkt. 130 (CourtListener) (September 30, 2026). Vacatur and injunction covering Proclamations 10973 and 11069.
- Global Nurse Force v. Trump, Defendants' Notice of Appeal, Dkt. 132 (CourtListener) (October 9, 2026). Appeal to the Ninth Circuit.
- Fee for Certain H-1B Petitions, Proposed Rule, 91 FR 54817, FR Doc. 2026-17324 (govinfo) (August 25, 2026). The $103,265 proposal and its exclusion of cap-exempt petitions.
- USCIS, Form G-1055 Fee Schedule, edition 10/16/26 (PDF) (October 16, 2026). H-1B base, asylum, fraud and ACWIA fee amounts.
- Unified Agenda, RIN 1615-AD00, Reforming the H-1B Nonimmigrant Visa Classification Program (reginfo.gov). Planned changes to cap exemption eligibility.
- reginfo.gov, EO 12866 regulatory reviews pending (XML). RIN 1615-AD00 received for review August 24, 2026.
- Federal Register API, documents under RIN 1615-AD00. No published document under the RIN as of October 21, 2026.
Frequently asked questions
Which employers are cap-exempt for H-1B purposes?
Four kinds of employer are cap-exempt under INA 214(g)(5): institutions of higher education as defined in the Higher Education Act, nonprofits related to or affiliated with such an institution, nonprofit research organizations, and governmental research organizations at the federal, state or local level. A nonprofit must hold IRS tax-exempt status under section 501(c)(3), (c)(4) or (c)(6). Your attorney can confirm whether a particular employer meets the test.
Can a private company sponsor a cap-exempt H-1B?
Usually not, because the exemption follows the employer's status. There is one exception: under 8 CFR 214.2(h)(8)(iii)(F)(4), a worker who is not directly employed by a qualifying university or research organization can still be cap-exempt if they spend at least half of their work time on duties at that institution that further its education or research mission. DHS says it focuses on the work performed, not on who pays for it.
Can I work for a university and a private company on H-1B at the same time?
Yes. If you hold cap-exempt H-1B status, a cap-subject employer can file a concurrent H-1B petition for you without a lottery selection, as long as your cap-exempt job continues. You can start the second job once that petition is properly filed, or on its requested start date if later. The concurrent approval cannot run past your cap-exempt validity period, and it depends on the cap-exempt job.
What happens if I leave my cap-exempt H-1B job for a company?
If you have never been counted against the H-1B cap, your new employer generally needs a registration selected in the annual lottery before it can file for you. If you were counted against the cap within the past six years, for example through an earlier cap-subject H-1B, you are generally not counted again and the new employer can file without registering. Your attorney should confirm which applies before you resign.
Do universities have to pay the $100,000 H-1B fee?
Cap-exempt status is not an exception to the $100,000 payment under Proclamations 10973 and 11069. The payment applies to certain new petitions for workers outside the United States, not to approved changes of status inside the country. As of October 21, 2026, it is not in effect: federal courts in Massachusetts and California have vacated the policies implementing it, and the government is appealing both rulings.
Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.
