The H-1B visa classification is often referred to as the “workhorse” of nonimmigrant visa classifications, and rightfully so. It is available to foreign national employees in specialty occupations (i.e., a position that requires a bachelor’s degree—or higher—in an occupation that is related to the specialty occupation) who seek to work in the United States. Year over year, the category is oversubscribed and is subject to an annual numerical cap of 65,000 visas. There are an additional 20,000 H-1B visas available to those with advanced United States degrees working in specialty occupations (colloquially, the “Master’s Cap”). The United States Citizenship and Immigration Services agency (USCIS) selects foreign national beneficiaries through a lottery process that takes place each spring. The lucky beneficiaries who selected during this lottery season were notified in late March. Petitioning employers then had from April 1 to June 30 to file H-1B petitions for adjudication (though selected beneficiaries may not assume H-1B status until October 1, so long as they have a hard copy of their Form I-797 Approval Notice at that time).
In late July, USCIS released its data for the FY 2026 H-1B lottery season. This USCIS data demonstrates that the H-1B visa category continues to be oversubscribed, though demand is down from previous years. In total, 336,153 unique, eligible beneficiaries registered in the lottery—down from 423,153 unique, eligible registrations in FY 2025. This year’s selection rate was approximately 35%.
Now, with the H-1B lottery season officially closed, employers should recall that not all H-1B petitions are subject to the H-1B numerical cap. Rather, beneficiaries who are not selected still have other opportunities to assume H-1B status through employment that is exempt from the H-1B cap (cap-exempt). Cap-exempt H-1B employment has several advantages, including that one may assume H-1B status pursuant to a cap-exempt petition at any time of year (not just during the H-1B lottery season), and no randomized selection process is required.
Cap-exempt employment may be available when:
- the beneficiary will work for an institution of higher education;
- the beneficiary will work for a nonprofit entity “related to” or “affiliated with” institution(s) of higher education (i.e., a teaching hospital);
- the beneficiary will work for a nonprofit or government research organization; or
- the beneficiary will work for a for-profit company, but the beneficiary will spend the majority of their time working at a site that falls under the three previous categories so long as the beneficiary is performing duties and activities which advance the primary purpose or mission of the qualifying institution.
The employment must also be able to satisfy other criteria, including being in a specialty occupation, satisfying wage obligations, and more.
