Question: How can I avoid going through the H-1B cap lottery system?

Answer: If you want to avoid having to go through the H-1B lottery, there are several types of
petitions that are not subject to the H-1B cap. The most common exemption is a petitioner
filing for an extension or an amendment of a beneficiaries current H-1B status. Employers can
also be exempt from the H-1B-Cap. Below are some examples of how beneficiaries and
employers can be exempt from the numerical limitation depending on the case.

Your best option to avoid the H-1B lottery is to find an employer that is exempt from the cap.
USCIS exempts non-profit institutes of higher education, affiliated or related entitles, and
government research organizations from being subjected to the H-1B lottery. Cap-exempt
employers mostly consist of colleges and universities, and hospitals. You do not need to be a
professor or a doctor to be employed by one of these institutions. These employers are exempt
from the H-1B cap as long as the position they are hiring for is a specialty occupation.

Your petition can also be considered cap-exempt if you will be working at a cap-exempt
institution but employed by a third-party. You must be performing 51% of your job duties in
service of the cap-exempt institution and be furthering the mission or function of the
institution. For example, if you are being hired by a consulting agency to build an app designed
to help patients access their medical information for a hospital, then you can argue that your
petition is cap exempt.

Regardless, the burden is on the employer to prove that the institution is a cap-exempt
employer with every petition they file. The specific evidence the employer will have to provide
will vary depending on the type of institution it is. You will not have to provide any of your own
information to prove the petitioner is a cap-exempt entity.

Additionally, there are a few ways for you to be exempt from the H-1B lottery. If the following
applies to you, you are exempt from the H-1B cap.

• If you already were already selected in the H-1B cap and you are filing and amendment
  or extension to your current H-1B status. This includes changing employers, re-capturing
  H-1B time, or extending your status beyond the 6-year limit.
• If you are a physician that was employed in the United States with a J visa, and you were
  granted an exemption from the 212(e) home residency requirement.
• You were employed in H status at a cap-exempt institution, and you are changing your
  employment to a cap-subject entity.

Cap-exempt petitions can be filed at any time of year and are not subject to the lottery, making
them an attractive option for job seekers. If you have questions about whether an employer or
job opportunity could be cap exempt, then contact your immigration attorney.