If you are reading this, the chances are you were not selected in the recent H-1B lottery. The H-1B visa lottery is a highly competitive process, with a limited number of visas available each year. For those not selected, it can be a challenging situation, but there are alternative pathways and options to consider, depending on your individual circumstances.
Overview of the H-1B Lottery Process
The H-1B visa program allows U.S. employers to hire foreign workers in specialty occupations. Each fiscal year, there is a cap of 85,000 visas, which includes 65,000 under the regular cap and an additional 20,000 for those with advanced degrees from U.S. institutions. The selection process is conducted through a lottery system due to the high volume of applications exceeding the cap. A new rule effective January 17, 2025, allows beneficiaries to self-petition.
Options for Those Not Selected
Cap-Exempt Employers: Some employers are exempt from the H-1B cap, allowing them to sponsor H-1B visas at any time. These employers can file H-1B petitions at any time of the year, by passing the lottery system. This is a viable option for those who can find employment with such institutions. Cap- Exempt employers include the following:
- Institutes of Higher education.
- A non-profit entity related or affiliated with an Institute of Higher education.
- A government research organization.
- Non- Profit research organization.
O-1 Visa: The O-1 visa is designed for individuals who possess extraordinary ability or achievement in their field, such as the sciences, arts, education, business, or athletics. To qualify, applicants must demonstrate a high level of expertise and recognition, often requiring evidence of national or international acclaim.
L-1 Visa: The L-1 visa is intended for intracompany transferees who work for a multinational company. It allows employees to transfer from a foreign office to a U.S. office of the same company. There are two types of L-1 visas: L-1A for managers and executives, and L-1B for employees with specialized knowledge. The L-1 visa facilitates the movement of key personnel within a company and can provide an expedited pathway to permanent residency.
E-2 Visa: The E-2 visa is available to investors or employees of investment companies from countries that have a treaty of commerce and navigation with the United States. To qualify, the applicant must make a substantial investment in a U.S. business and play a significant role in its operations. The E-2 visa is renewable indefinitely as long as the investment enterprise is operational and meets the visa requirements.
E-3 Visa: The E-3 visa is specifically for Australian nationals who wish to work in the United States in specialty occupations. Similar to the H-1B visa, it requires a job offer in a position that necessitates a bachelor’s degree or higher.
TN Visa: The TN visa is available to Canadian and Mexican citizens under the United States-Mexico-Canada Agreement (USMCA). It allows these nationals to work in the U.S. in certain professional occupations without an annual cap. The TN visa is valid for up to three years and can be renewed indefinitely, provided the individual continues to meet the eligibility requirements
Day 1 CPT (Curricular Practical Training): Many students enroll in a new degree program that offers Day 1 CPT, allowing them to work while studying. However, this option should be approached with caution due to potential immigration risks (the previous Trump administration deemed this to be unlawful). Day 1 CPT programs have been scrutinized for their legitimacy, and students should ensure that the program is integral to their curriculum and complies with SEVP regulations. USCIS has been known to issue Requests for Evidence (RFEs) questioning the legitimacy of CPT programs, especially if they appear to be used primarily for work rather than education.
STEM OPT Extension: If you are on an F-1 visa and have completed a degree in a STEM field, you may be eligible for a 24-month OPT extension, providing additional time to work in the U.S. and potentially reapply for the H-1B lottery.
Reapply Next Year: Consider improving your application and reapplying in the next H-1B lottery cycle.
Conclusion
While not being selected in the H-1B lottery can be disappointing, there are several alternative pathways to consider. It’s important to evaluate each option carefully, considering both the benefits and potential risks. Consulting with an immigration attorney can provide personalized guidance based on your specific circumstances. If you have questions regarding the above please reach out to PLG Partner, Chris Prescott at cprecsott@patellegal.com.