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Statistics
Annual Caps for H-1B for Fiscal Years: 85,000 visas
- 65,000 visas
- 20,000 visas for the master’s cap*
The master’s cap – individuals with advanced degrees from U.S. institutions.
Topics
H-1B Employer Types Explained: Regular, Small Employer, and Nonprofit
Understand H-1B employer categories, cap treatment, and filing fee differences for regular, small, and nonprofit sponsors.
In the H-1B process, not all petitioning employers are treated the same. USCIS rules apply different fee and cap outcomes depending on employer characteristics and petition type. If you are an employer, this affects cost and filing strategy. If you are an employee, this helps you confirm what your sponsor is actually filing under.
For practical filing purposes, this article uses three employer-side buckets based on USCIS fee and cap rules:
- Regular employers generally for-profit employers that are not in a special exempt category.
- Small employers typically 25 or fewer full-time equivalent U.S. employees for ACWIA purposes.
- Nonprofit organizations and certain related/research entities under USCIS rules.
This Explainer Covers:
- Clear definitions of H-1B employer types.
- Regular vs Small Employer vs Nonprofit: what changes and what does not.
- Filing fee differences, side by side.
- Nonprofit cap-exempt basics (because “nonprofit” does not automatically mean cap-exempt).
If you want the full process context, review Employer Sponsorship for an H-1B Visa and H-1B Electronic Registration: Step-by-Step before filing.
H-1B Employer Types
Regular, Small Employer, and Nonprofit - these categories are not just labels. They affect cap treatment, fee exposure, and sometimes whether a filing strategy is even available.
Use the comparison below as a fast pre-filing check. Employers can use it to budget correctly, and employees can use it to verify that the case type they were told actually matches what USCIS expects.
| Item | Regular | Small Employer | Nonprofit |
|---|---|---|---|
| How type is identified | For-profit employer not classified as small and not filing under nonprofit/research criteria. | Petitioner with 25 or fewer U.S. FTE workers (for ACWIA fee classification). | Tax-exempt nonprofit or qualifying affiliated/research organization under USCIS rules. |
| H-1B cap treatment | Usually cap-subject; cap-exempt only if a separate exemption applies. | Usually cap-subject; cap-exempt only if a separate exemption applies. | May be cap-exempt only if it meets USCIS cap-exempt criteria (for example, qualifying higher-education, affiliated nonprofit, or nonprofit/government research categories). |
| Form I-129 filing fee (H-1B) | $780 | $460 | $460 |
| Asylum Program Fee (with I-129) | $600 | $300 | $0 |
| ACWIA training fee | $1,500 if not ACWIA-exempt (typically employers with more than 25 employees). | $750 if not ACWIA-exempt. | Often exempt for qualifying nonprofit/education/research employers; otherwise standard ACWIA rules apply. |
| Fraud Prevention & Detection Fee | $500 for initial/change-of-employer H-1B filings (same rule for all employer types). | $500 for initial/change-of-employer H-1B filings (same rule for all employer types). | $500 for initial/change-of-employer H-1B filings (same rule for all employer types). |
| Public Law 114-113 fee | $4,000 may apply if employer has 50+ U.S. employees and more than 50% in H-1B/L-1 status. | Usually not triggered, but the same 50+/50% test still controls. | $4,000 may apply if the same 50+/50% threshold is met. |
| H-1B registration fee (cap cases) | $215 per beneficiary. | $215 per beneficiary. | $215 per beneficiary. |
Fee context above reflects USCIS fee rules in effect on the publication date of this article. USCIS occasionally updates forms and fee logic, so verify the filing-date instructions before you submit.
Cap-Exempt Nonprofit: Quick Rules
Not every nonprofit filing is automatically cap-exempt. In H-1B practice, cap exemption depends on whether the petitioner and role fit a qualifying category recognized by USCIS.
How to Qualify
- A qualifying institution of higher education can file cap-exempt H-1B petitions.
- A nonprofit or governmental research organization may qualify under research-based cap-exempt criteria.
- A nonprofit entity that is related to or affiliated with a qualifying institution may also qualify.
- If a filing does not meet cap-exempt criteria, the petition is generally cap-subject even if the employer is a nonprofit.
Employer Fee Checklist Before Filing
Before submitting an H-1B case, confirm fee logic in the order below so there are no avoidable rejections or surprises.
- Confirm whether the case is cap-subject or cap-exempt.
- Confirm employer size/FTE count for ACWIA and Asylum Program Fee classification.
- Confirm whether ACWIA exemption rules apply.
- Confirm whether the $500 Fraud Prevention fee is triggered by the filing type.
- Confirm whether the $4,000 Public Law 114-113 threshold applies.
- Confirm the exact fee amounts on the USCIS filing-date page before final submission.
Official USCIS Sources
FAQ
1. How does the Asylum Program Fee work in H-1B filings?
The Asylum Program Fee is an extra USCIS fee charged with Form I-129, including H-1B filings. It is separate from the I-129 filing fee, ACWIA fee, fraud fee, and any premium processing fee.
For H-1B filings, the current fee is generally $600 for regular employers, $300 for small employers, and $0 for qualifying nonprofits.
Who pays: The employer/petitioner (not the employee).
When it applies: Generally with each Form I-129 filing (so if multiple I-129s are filed, the fee can apply to each one).
2. Is a nonprofit employer automatically cap-exempt for every H-1B filing?
No. A nonprofit employer is cap-exempt only when the filing fits a qualifying USCIS cap-exempt category. A nonprofit label by itself is not enough.
3. How does USCIS count employees to determine Small Employer status?
USCIS uses a full-time equivalent (FTE) employee count for workers currently employed by the petitioner in the United States at the time of filing. This count includes full-time workers plus part-time hours converted to FTE.
If an employer claims 25 or fewer FTE employees but reports a higher raw employee number elsewhere on the form, USCIS may request supporting evidence (or issue an RFE) and can reject a filing that is not fee-complete or clearly documented.
4. Which H-1B fees are always required regardless of employer type?
There is no single H-1B fee that applies in every filing scenario. The Form I-129 filing fee and (for cap cases) the registration fee are common baseline costs.
Other fees, including ACWIA, Fraud Prevention, Asylum Program Fee, and Public Law 114-113, depend on filing type and employer profile.
5. Can the Asylum Program Fee be waived for for-profit employers?
Generally, no. Standard H-1B fee rules do not provide a broad Asylum Program Fee waiver for for-profit I-129 petitioners.
Instead, the framework applies a reduced amount for small employers and no additional Asylum Program Fee for qualifying nonprofits.
6. When does the $4,000 Public Law 114-113 fee apply in H-1B cases?
It may apply when the petitioner has 50 or more U.S. employees and more than 50% of those employees are in H-1B or L-1 status, and the filing type triggers the fee.
If your company is near that threshold, confirm eligibility before filing because this is one of the largest H-1B fee add-ons.
7. Can an employer pass H-1B filing fees to the employee?
Not always. Some H-1B costs are employer responsibilities, and shifting those costs to the worker can violate wage rules.
At a minimum, employers cannot require the worker to pay the ACWIA training fee or the Fraud Prevention fee, and they also cannot shift business expenses in a way that drops pay below the required wage.