301.823.6670 | TK@KennedyVisas.com

 You may be eligible for cap-exempt H-1B status if you work for, or at, one of the following:

• An institution of higher education, as defined in the Higher Education Act
• A nonprofit entity related to or affiliated with an institution of higher education, including many university hospitals and research affiliates
• A nonprofit research organization or a governmental research organization whose primary purpose is basic or applied research
• A Conrad 30 waiver position, structured to maintain cap exemption

1. Employed at a cap-exempt institution. A worker employed by a cap-subject company, such as a staffing firm or a private laboratory, may still be exempt when the work is performed at a qualifying institution and directly furthers that institution's essential purpose. The physical location alone is not enough; the duties must serve the institution's mission.
2. Concurrent employment. A worker who already holds cap-exempt H-1B status may take a second, concurrent H-1B position with a cap-subject employer without a cap number, so long as the cap-exempt employment continues.

Cap-exempt status belongs to the job, not the worker. Moving from a cap-exempt employer to an ordinary cap-subject employer requires a cap number, which means the lottery, unless the worker was counted against the cap within the past six years. Anyone planning a career that may move from a university or research setting into private industry should plan for that transition early.

A worker who was counted within the past six years and has not used the full six years of H-1B time can change employers, including to a cap-subject company, without a new lottery. 

USCIS treats a nonprofit as affiliated with a university only where there is shared ownership or control, a formal written affiliation agreement, or a primary purpose of contributing directly to the school's research or education mission.  This is why some hospitals qualify and others do not, and it is where Kennedy Law's analysis begins. 

An H-1B filed to fulfill a Conrad 30 or other J-1 waiver commitment is cap-exempt by statute. 

Kennedy Law evaluates whether the employer, the affiliation, or the work itself supports an exemption, documents the qualifying relationship, and plans the timing so that the cap-exempt position, any concurrent employment, and a later move to industry fit together. Attorney Kennedy is responsible for the strategy and the details of each petition.

The spouse and unmarried children under 21 of a cap-exempt H-1B worker hold H-4 status on the same terms as the dependents of any other H-1B worker. The cap does not apply to them, and their status runs with the principal's: they may enter, remain, and study in the United States for as long as the H-1B remains valid. An H-4 spouse may apply for work authorization once the principal has an approved I-140 immigrant petition or has been granted H-1B time beyond the sixth year under AC21, which for many university and research employees happens while they are still in cap-exempt employment.