Cap-exempt vs cap-subject: what changes in planning
For PERM strategy, the key point is simple: cap-exempt solves “how to work on H-1B without the lottery,” but it does not solve “how to safely reach I-140 and (if eligible) I-485.” In universities and nonprofits, internal movement is common (departments, funding lines, PI changes, campus shifts). Those “normal” changes are exactly what can create material change and force a restart of the PWD/recruitment/ETA-9089 sequence.
- The “cap trap” when moving to industry: if you have never been counted against the cap, moving to a cap-subject employer may require a cap process again.
- PERM is tied to the job opportunity: role, worksite, and minimum requirements must stay consistent from PWD through recruitment to ETA-9089.
- Wage gaps are common: an academic pay scale that works for LCA compliance may still fall below PERM’s prevailing wage (PWD), especially with SOC/level/location changes.
| Topic | Cap-exempt (universities / nonprofits) | Cap-subject (private employers) |
|---|---|---|
| H-1B start timing | Flexible timing outside the cap season; convenient for academic onboarding. | Often tied to cap registration/lottery and fiscal-year timelines. |
| Employer change | If not previously counted, moving to cap-subject may reintroduce cap/lottery risk. | Typically no new lottery if already counted and moving within cap-subject employment (case-specific). |
| What most often breaks PERM | Worksite/campus change, duty/level reshaping, requirements shifting with a new PI or department. | Reorgs, layoffs, role/worksite changes, visa availability waiting periods. |
H-1B start timing
Cap-exemptFlexible timing outside cap season.
Cap-subjectOften cap/lottery and FY timing.
Employer change
Cap-exemptIf not counted: cap/lottery risk when moving to industry.
Cap-subjectOften no new lottery if already counted (case-specific).
What most often breaks PERM
Cap-exemptWorksite/campus, duties, requirements changes.
Cap-subjectReorgs, role/worksite changes, visa backlog.
Cap-exempt planning check. If HR expects meaningful changes in the next 6–12 months, design the role (and the “primary worksite”)
so it can survive those changes without forcing a PWD or recruitment restart.
When to start PERM (and why late starts break the plan)
PERM is not a single form. It is a sequence: role design → prevailing wage (PWD) → recruitment → ETA-9089 filing → adjudication (sometimes with audit). In cap-exempt settings, it is tempting to wait for a “perfect moment” (new grant cycle, promotion, end of the academic year). In practice, waiting is what usually creates the time crunch: the process does not accelerate simply because the calendar becomes more convenient.
Strong role design at the start: choose duties and worksite so the position can remain stable for at least 12 months.
The fewer material-change triggers midstream, the lower the restart risk.
Build a real buffer: if you want safe room for extensions and uncertainty, avoid running PERM/I-140 “right up against” a status deadline.
This matters even more when visa retrogression is possible.
Academic reality: internal transfers and duty changes are common. The strategy is not to pretend they won’t happen—
it’s to anticipate them before PWD and recruitment lock the case into a narrow description.
Chart: where PERM timelines are typically consumed
Case setup
2–6 wks
PWD (NPWC)
4–7 mos
Recruitment/ads
2–4 mos
PERM adjudication
6–12+ mos
Audit (if issued)
+6–12 mos
Time ranges are approximate and vary with agency workload and case profile. The point is the planning logic:
“we’ll start later” often turns into “we’ll restart,” or “we have no buffer left.”
A common plan-breaker. A cap-exempt H-1B worker plans to move into cap-subject industry, but PERM starts late.
Then three risks stack at once: cap/lottery exposure, no established I-140 progress, and a shrinking timeline to maintain status until AOS.
Wage logic: aligning LCA reality with PWD/ads/ETA-9089
In universities and nonprofits, wages often follow structured pay scales (steps/grades), funding lines, and internal policies. For H-1B, that typically works through LCA compliance (required wage ≥ prevailing/actual). PERM is stricter: you must obtain a PWD, recruit for a specific job opportunity, and later support the offered wage within the green-card process (including the employer’s ability-to-pay analysis at I-140).
| Element | H-1B (LCA / current practice) | PERM (PWD → ads → ETA-9089) |
|---|---|---|
| Duties | Support specialty-occupation logic and reflect the real role. | Must align with SOC logic and match what appears in recruitment and ETA-9089. |
| Location | Relocations may require a new LCA and/or an amended filing. | Location drives the PWD and recruitment; changes often mean restarting the cycle. |
| Salary | Required wage ≥ prevailing/actual; institutional pay scales can support the actual wage structure. | Offered wage ≥ PWD, plus willingness/ability to pay at the permanent residence stage. |
| Minimum requirements | Must be logically tied to the specialty occupation and role needs. | Must be true minimums—neither inflated nor tailored to a single candidate. |
Duties
H-1BSupport specialty-occupation logic and the real role.
PERMMust match SOC logic, recruitment, and ETA-9089.
Location
H-1BRelocations may require a new LCA/amendment.
PERMLocation sets PWD and recruitment; changes often = restart.
Salary
H-1BRequired wage ≥ prevailing/actual.
PERMOffered wage ≥ PWD + ability to pay (I-140 stage).
A practical sequence that reduces restart risk:
1) lock in a “primary worksite” and stable duties for 12 months; 2) compare expected PWD with the budget/pay scale before recruitment begins; 3) keep a consistent “role skeleton” across LCA/HR/recruitment/ETA-9089 (meaning-based, not copy-paste).
1) lock in a “primary worksite” and stable duties for 12 months; 2) compare expected PWD with the budget/pay scale before recruitment begins; 3) keep a consistent “role skeleton” across LCA/HR/recruitment/ETA-9089 (meaning-based, not copy-paste).
The most expensive time to “revise.” If you already obtained a PWD and started ads, then change level or location,
the cost is usually time: new PWD, new recruitment, and sometimes a new extension strategy.
Extensions, visa availability, and AOS timing (I-485)
Even a perfectly prepared PERM case does not mean you can file I-485 immediately. AOS timing depends on the Visa Bulletin (EB-2/EB-3 category and country of birth). A workable strategy rests on two pillars: (1) maintaining lawful status until AOS or consular processing is possible, and (2) keeping the case “filing-ready” so an unexpected Visa Bulletin window does not go to waste.
- PERM establishes the priority date (typically the ETA-9089 filing date)—your place in line.
- I-140 locks the category and supports the employer’s ability-to-pay position; it can be strategically important while waiting.
- I-485 is only available when visa numbers are current; missing a window is easier than most people expect if the case is not prepared.
How to keep the chain under control
Before PWD: choose a role/worksite that is not likely to move into another metro area midstream.
This single decision is often the difference between continuity and restart.
Before recruitment: confirm the offered wage is realistic under the institution’s pay scale/budget.
If PWD comes back above the ceiling, solve that before ads.
After PERM: plan I-140 timing so you are not “boxed in” by status deadlines and backlog uncertainty.
At this stage, role/worksite changes need careful handling.
Before I-485: keep documentation organized and monitor the Visa Bulletin so a filing window can be used safely and quickly.
Chart: what most often drives waiting time to I-485
PWD + PERM timing
high
Visa Bulletin
very
Job changes
high
I-140 speed
mid
This chart is about priorities, not percentages: the biggest timeline drivers are usually visa availability and the stability of the job opportunity,
not just how fast forms are submitted.
Why “waiting and doing nothing” can be risky. During backlog periods, the most common problem is an internal change
(new PI, campus move, duty reshaping). If the change breaks the PERM job description, you lose time and may lose the cleanest path to AOS readiness.
Department/job changes: where “material change” begins (and how progress gets lost)
In academia and nonprofits, changes often feel “internal”: same employer, same campus system, just a new PI or new funding. For immigration strategy, you must translate internal changes into document logic: does the worksite change the area of intended employment, do duties/level change, do minimum requirements change, does wage logic change, and does the PERM job description still match the real job opportunity.
| Change | H-1B (risk/actions) | PERM (risk/actions) |
|---|---|---|
| Worksite in another metro area | high risk often a new LCA and sometimes an amended filing. | high risk typically a new PWD and new recruitment. |
| Substantial duty/level change | mid–high may require an amended filing if the role is materially different. | high risk recruitment must describe the real job; often a restart. |
| Minor title change | low–mid typically a documentation/compliance review. | mid confirm SOC/level/requirements are not shifting under the hood. |
| Salary increase | usually safe if compliance and role consistency remain intact. | often helpful supports PWD alignment and ability-to-pay posture. |
Worksite in another metro area
H-1BHigh risk: new LCA / sometimes amended filing.
PERMTypically new PWD and recruitment.
Substantial duty/level change
H-1BMay require amendment if materially different.
PERMOften a restart if recruitment no longer matches reality.
The most common mistake. Starting PWD/ads for one role, then quietly reshaping the job (level, duties, or worksite).
This turns completed steps into sunk time. If the change is inevitable, decide early: keep the role stable through a checkpoint,
or restart the cycle honestly under the new role.
A 12–24 month roadmap: checkpoints that matter
Visual roadmap (all labels black, large, responsive)
0–2 mos: role lock
start
2–7 mos: PWD
critical
6–10 mos: ads
risk
10–18 mos: PERM
waiting
18–24 mos: I-140/AOS
by PD
| Window | Checkpoint | What to verify |
|---|---|---|
| 0–2 mos | Role design | Permanent/full-time logic; stable worksite; true minimum requirements; realistic change forecast for the next 12–18 months. |
| 2–7 mos | PWD | PWD affordability under budget/pay scale; SOC/worksite correctness; wage decisions made before recruitment. |
| 6–10 mos | Recruitment/ads | Ads ↔ ETA-9089 alignment; no “tailoring”; complete evidence retained for each step. |
| 10–18+ mos | PERM pending | Avoid abrupt duty/worksite changes; if change is unavoidable, evaluate restart needs early. |
| 18–24 mos | I-140 + AOS readiness | Ability to pay; EB-2 vs EB-3 strategy; Visa Bulletin monitoring; filing readiness if a window appears. |
0–2 mos: role design
VerifyPermanent/full-time, stable worksite, true minimums, realistic change forecast.
2–7 mos: PWD
VerifyPWD affordability, SOC/worksite accuracy, wage decisions before recruitment.
6–10 mos: recruitment
VerifyAds ↔ ETA-9089 alignment, no tailoring, full documentation.
Frequently asked questions
Can PERM be started if the university contract is renewed annually?
PERM is built around a permanent, full-time job opportunity. Annual contract renewals are not automatically disqualifying,
but they increase the need for consistency: the position should be permanent in substance (not a one-off project),
and the employer must be willing to maintain the offer through the permanent residence stage.
If I’m cap-exempt on H-1B, can I move to a private company without a lottery?
It depends on whether you have ever been counted against the cap. If not, moving to cap-subject employment may reintroduce cap/lottery exposure.
Plan industry transitions early—before you are close to a status deadline.
Which changes most often force PERM restarts in academic settings?
The most common triggers are worksite moves to another metro area, substantial duty/level changes,
and shifting minimum requirements after PWD/ads begin (often tied to new PI/department expectations).
PERM depends on a consistent job opportunity—if recruitment no longer describes reality, restarting is often the safest choice.
What matters more: starting PERM quickly or keeping the role stable?
In most cases, stability matters more than speed. Starting quickly under a role that will materially change in three months often wastes time.
The stronger approach is to design a role/worksite that can survive foreseeable changes, and then run PWD and recruitment.
Why can’t an LCA/PWD wage gap be “fixed later”?
Because PWD and recruitment lock the job opportunity. If PWD comes back above budget/pay scale,
later adjustments often mean a new PWD and new recruitment. Wage decisions (raise, re-leveling, role redesign, location choice) are best handled before ads.
When should I plan for I-485 readiness?
As soon as the priority date exists (PERM filed) and especially after I-140: you are now living under Visa Bulletin timing.
A “ready” case helps you file safely and promptly when a window appears, instead of scrambling and risking errors.
Official sources (with explanations)
DOL FLAG — PERM Labor Certification Process
DOL’s official PERM hub: purpose of the process, baseline requirements, and links to related guidance.
DOL FLAG — Prevailing Wage Determination (ETA-9141)
DOL guidance on prevailing wage: how SOC, location, and level drive PWD outcomes.
U.S. Department of State — Visa Bulletin
Monthly visa availability data for EB categories—central to I-485/consular timing.
USCIS Policy Manual — Job Portability after Adjustment Filing (AC21)
USCIS policy guidance on post-I-485 job portability (“same or similar”) and related conditions.
USCIS — H-1B Cap Exemptions (FOIA PDF)
A USCIS FOIA PDF discussing cap-exempt categories—useful for definitions and cap-exempt framing.
Internal reading:
cap-exempt overview
·
PERM step-by-step
