What Next? When the H-1B Lottery Odds Were Not With You

U.S. Citizenship and Immigration Services held its annual H-1B lottery at the end of March, and while official figures have not been released, it appears only 30 to 40% of the submissions were selected.  What should you know if your petition wasn’t selected?

First, while I don’t want to create false hope, there is a chance more submissions will yet be selected. It has been suggested that the agency did not draw as many registrants this year as it has done in the past. I cannot confirm this, but it sounds right, based on the percentages we’ve seen.  In the past, the agency has selected more submissions than the annual quota allows, knowing that a certain percentage of the applications would not be approved.  Last year, long after the initial lottery, a few registrants were later given opportunity to file.  Conceivably, the agency can take stock of the situation again after June 30th, which is the deadline for H-1B filing by those were selected. Again, I am not suggesting anyone should rely on this possibility—just noting it.

Here are some other possibilities, for those not selected in the H-1B lottery:

  1. Seek employment with a “cap-exempt” H-1B employer.  Certain employers are not subject to the H-1B cap, and can make application for H-1b employees throughout the year. Cap-exemption organization include (1) institutions of higher education; (2) non-profit entities which are “related to” or “affiliated with” institutions of higher education; (3) non-profit research organizations; and (4) government research organizations. Generally speaking, these employers tend to be non-profit hospitals, universities and other educational institutions with ties to universities, and organizations engaged in research.  It can sometimes be very complicated establishing whether an organization is “related to” or “affiliated with” an institution of higher education, but a lot of time those employers that have these relationships are well aware. There usually is a written contract substantiating the relationship, or perhaps shared seats of governing boards.
  2. F-1 graduates of certain STEM college programs may be able to obtain an additional two years of optional practical training, if their employment is approved by the Designated School Official, and their employer is an E-Verify participant and willing to support a training plan.
  3. Some professionals may qualify for O-1 Extraordinary Alien status. O-1s are typically granted for 3 years, and require a merits-based showing that a person has risen to the top of their field.  Adjudications have been tougher on this category in recent years, but the criteria for qualifying allow some flexibility in demonstrating an applicant’s renown.
  4. There are country-specific options that can sometimes work.  Australia has its E-3 visas, which are basically another kind of H-1B.  Chile and Singapore have a special allotment of H-1B1 visas, which are also very similar to the H-1B.
  5. Certain employers can qualify new employees as E-1 or E-2 workers.  The E visas are based on bilateral treaties between the United States and the respective country. There are many of these treaties. They are designed to encourage trade and investment with the U.S. A foreign owned country that has a U.S. business may qualify for either of these. The E visas can be used to employ Executives, Managers, and Essential Persons.
  6. The L-1 intracompany transfer visa is another status to look at sometimes. For someone who missed out on the H-1B lottery, it is a less likely option, unless that individual is working outside the U.S., as an employee of a commonly owned and controlled company in the U.S. The L-1 requires at least six months and usually one year of employment abroad, before qualifying. There are many more details to this status, but let’s just say here that it is something to think about when there is a multinational organization.
  7. More school is sometimes the only option. It is sometimes possible to change courses of study, or enroll in a more advanced curriculum (e.g. Master’s, PhD).
  8. J-1 Exchange Visitor programs sometimes offer opportunities, but they are usually limited and have particular focus.  Also, many of these programs have a two-year foreign residency requirement attached to them.
  9. Permanent residence petitions may be a consideration in some cases, but legal analysis is warranted. For example, for the right situation, it may be possible for a person to self-petition for an EB-2 National Interest Waiver. Timing is and visa availability will always be concerns, in addition to eligibility.
  10. Since we’re ticking off options here, there is an alternative universe of limited possibilities in family-based immigration that may warrant analysis.

Other possibilities that may apply. However, it can be tough to find a fitting alternative to the H-1B, which is part of the reason the H-1B is so sought after by employers and beneficiaries alike.

One final note: there is always the possibility of changes in the law creating new possibilities for immigration. Maybe the DREAM Act, or a COVID relief bill.  Both forms of legislation have a great deal of support.