In the mad rush up to the April first filing deadline for the H-1B cap season, most employers experience an anxiety stemming from concern over whether or not USCIS will select their petitions in its lottery-like cap for the 65,000 available visas. In the storm of activity this period inspires in employers and employees, many forget to ask themselves fundamental questions about the whole process. Many companies or petitioning organizations who are hiring foreign workers should ask themselves, however, is if they are even subject to the cap at all. Organizations that are not subject to the H-1B visa cap are called "cap-exempt." Such organizations include governmental research organizations, non-profit research organizations, and institutes of higher education. Although many types of cap-exempt organizations are easily identifiable, many employers may be surprised to realize that their organization is also cap-exempt, or that legal arguments may be made that can convince USCIS of their cap-exempt status.
For example, the law specifically states that an employee of an "institution of higher education" is exempt from the H-1B visa cap. Immigration law references the definition of an institution of higher education found in the Higher Education Act of 1965. This means any public or private university or college that admits students with the equivalent of a high school diploma to at least a two year degree program is a cap-exempt employer.