Not Selected in H-1B Lotteries – Other Options?

H-1B is a non-immigrant visa that allows U.S. employers to sponsor foreign nationals to work in a “specialty occupation” that normally requires at least a U.S. Bachelor’s degree or its equivalent. H-1B has an annual quota (cap) of 85,000, of which 65,000 is for people having at least a U.S. Bachelor’s degree or its equivalent, and 20,000 for those who have a U.S. Master’s degree or higher.  H-1B sponsoring employers must register each candidate they wish to sponsor who are subject to the H-1B cap via USCIS online system in during the open registration period normally taking place in March of each year. Since the demand for H-1B visa far exceed the annual cap of 85,000, USCIS has been conducting H-1B “lotteries” each year to select from the H-1B cap registrations to allocate the available H-1B cap numbers.

Overwhelming majority of the H-1B cap registrations are not selected in the lotteries since USCIS started its H-1B cap online registration system a few years ago.  If an H-1B cap registration is not selected in the lotteries, potential alternative options may include the following:

1. Work Permit Based on Optional Practical Training (OPT)/STEM OPT/Curricular Practical Training (CPT).
   • Foreign students who graduate from a U.S. college/university may be eligible for up to 12 months of OPT, obtain Work Authorization Document (EAD) and work in a field relating to their degree using the EAD.
   • Foreign students with an eligible STEM degree may extend their initial 12 month OPT EAD for an additional 24 months.
   • Foreign students enrolling in a college/university may qualify for school issued I-20 employment authorization under CPT.
2. Work Visa for Individuals with Extraordinary Ability or Achievement
   • O-1A visa for individuals with extraordinary ability in science, business, education, or athletics.
   • O-1B visa for individuals with extraordinary ability in the arts, or achievements in the motion picture/television industry.
3. Work Visa Based on Nationality.
   • TN1 visa for citizens of Canada, and TN2 for citizens of Mexico, who perform work in certain professional occupations.
   • E-3 visa for citizens of Australia who perform work in specialty occupations.
   • H-1B1 for citizens of Chile and Singapore to perform work in specialty occupations.
4. Work Visa for Intracompany Transferees.
   • If an U.S. employer has overseas parent/subsidiary, affiliate or branch office, it may potentially transfer a U.S. worker to its qualified overseas entities for a year or longer, and then petition for L-1A (executives or managers), or L-1B (individuals with specialized knowledge) visa to transfer the employee back to the U.S.
5. Work Visa for Treaty Traders and Treaty Investors.
   • E-1 visa for citizens of certain qualifying treaty countries with the U.S. who will come to the U.S. to engage in substantial trade in goods, services, or technology, principally between the U.S. and the treaty country.
   • E-2 visa for citizens of certain qualifying treaty countries with the U.S. if the individual or their company invests substantial amount of capital in a U.S. enterprise. Certain essential employees of a company who have the same nationality may also qualify for E-2 visa.
6. Work Authorization for International Entrepreneurs. 
   • Employees/owners of certain start-up companies that have received qualifying investments or grants may be eligible to be paroled into the U.S. and receive work authorization.
7. Work Visa for Exchange Visitors.
   • J-1 visa for certain exchange visitors via collaboration with a DOS approved J-1 sponsoring agency.
8. Green Card.
   • Self-petition for a green card (EB1A, NIW, EB5, family based green card).
   • Green card through employer sponsorship (EB1B, EB1C, EB2, EB3, EB4).
9. Work Visa/Work Permit as Derivative Beneficiaries.
   • EAD via family based green card petition.
   • Immediate relatives of certain non-immigrant visa holders.
10. Work Permit for Citizens of Countries That Were Granted Temporary Protected Status (TPS)
    • EAD for citizens of TPS countries.
11. Look Abroad for Alternatives.
    • Potential remote work from another country.

As H-1B visa lawyer (and experienced immigration lawyer), we strategize based on situations of each individual matter.