The H-1B cap and who is exempt
The regular H-1B cap is "65,000 in each succeeding fiscal year" 8 U.S.C. § 1184(g)(1)(A)1. Beneficiaries with a U.S. master's or higher degree draw from a separate 20,000 allocation. Petitions from higher-education, affiliated-nonprofit, and research employers are not counted against the cap at all. 8 U.S.C. § 1184(g)(5)1
- Chile/Singapore set-aside — Up to 1,400 H-1B1 approvals for Chile and 5,400 for Singapore come out of the 65,000. 8 U.S.C. § 1184(g)(8)(B)1
- Advanced-degree exemption — The cap does not apply to a beneficiary who "has earned a master’s or higher degree from a United States institution of higher education," up to the point where those exemptions in a year exceed 20,000. 8 U.S.C. § 1184(g)(5)(C)1
- Cap-exempt employers — The cap also does not apply to employment at "an institution of higher education … or a related or affiliated nonprofit entity," or at "a nonprofit research organization or a governmental research organization." A nonprofit counts as affiliated through shared ownership or control, being operated by or attached to the institution, or a formal written affiliation agreement tied to research or education. 8 U.S.C. § 1184(g)(5)(A)–(B)1; 8 C.F.R. § 214.2(h)(8)(iii)(F)2
- Previously counted workers — A worker counted within the prior six years is not counted again "unless the alien would be eligible for a full 6 years of authorized admission." A worker who was cap-exempt is counted the first time he or she moves to a non-exempt employer. 8 U.S.C. § 1184(g)(6)–(7)1
- Wage-weighted selection (FY 2027 onward) — Under the final rule effective Feb. 27, 2026, "a beneficiary assigned wage level IV will be entered into the selection pool four times," level III three times, level II twice, and level I once. USCIS runs the regular-cap selection first, then the advanced-degree selection from the remaining registrations. 8 C.F.R. § 214.2(h)(8)(iii)(A)2; Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions, 90 Fed. Reg. 60864 (Dec. 29, 2025)3
Practice notes
- $100,000 payment (unsettled) — Proclamation 10973 restricted entry of certain new H-1B workers unless the petition is accompanied by a $100,000 payment. A September 2026 proclamation extends it "until 12:00 a.m. eastern daylight time on September 21, 2027." It is being challenged in court — check its current status. It does not change the statutory cap. Proclamation No. 10973, 90 Fed. Reg. 46027 (Sept. 24, 2025)4; Restriction on Entry of Certain Nonimmigrant Workers (Sept. 2026 extension), FR Doc. 2026-195545