Clarity and Strength in Immigration Law

Surviving and Thriving Through the H-1B Cap Lottery Loser Blues: 15 H-1B Alternatives

By Brianne Donovan

USCIS has conducted the H-1B cap lottery and by this time, the H-1B cap “winners” (those whose registration was selected) have been notified. If your H-1B registration was not selected in the lottery, the online portal will still say “submitted.” The system will not change to say “denied” or “not selected” until the end of the fiscal year (the end of September). It is possible though not likely that USCIS will select additional petitions later this year, if not enough petitions are actually submitted (or approved) to meet the statutory cap (65,000, and 20,000 for US master’s degree holders or higher).

If you were not selected for an H-1B visa from the cap selection process, we are so sorry. We understand it must be incredibly disappointing. However, if you were not selected in the lottery, keep the faith! The H-1B classification is one of many different visa classifications and options. We have listed below fifteen alternative options. These are among the most commonly used classifications, but keep in mind that there are others too and an experienced immigration attorney can help you navigate them.

If you are a foreign national student on an F-1 Visa, consider these options:

  1. If you recently graduated from a U.S. degree program, you may still qualify for one year of Optional Practical Training (OPT). You may pursue a career at a U.S. company for one year and be eligible to apply for next season’s H-1B lottery.
  2. If you received a degree in STEM (Science, Technology, Engineering, or Math), you may be eligible for two years of Optional Practical Training, thereby allowing you to register for the next two H-1B lotteries and increase your chances.
  3. Depending on your coursework, you may be eligible for CPT (curricular practical training). Please note that this program is often mis-used, and certain universities will grant it more liberally than others. It’s critical to make sure that you are using the program as it was intended.
  4. You may continue your studies in the US, either at the same degree level (but you would not be eligible for additional OPT, if you have already used the 12 months), or at a higher degree level (you should be eligible for OPT at the conclusion of the degree program).

Other visa classifications:

  1. L-1 Visa: If you have worked outside of the United States (for at least one year over the past three years) as a manager or executive for an international company with a U.S. office, you may qualify for an L-1 visa. If you do not currently work outside of the U.S. but work for an international company with a U.S. branch, speak with an attorney about potential options for transferring. There is no quota for an L-1 visa so you would not be subjected to the uncertainty of a lottery system.
  2. E-3 Visa (Australian Citizens): If you are currently an Australian citizen, you may be eligible for U.S. employment through this visa. It is similar to the H-1B classification, but it is specifically for Australian citizens.
  3. TN Visa (Canadian and Mexican Citizens): If you are currently a Canadian or Mexican citizen, you may be eligible for U.S. employment through this visa.
  4. H-1B1: This classification is also similar to the H-1B, but it is for citizens of Chile and Singapore.
  5. E-1/E-2 Visa: Certain trade treaties that the U.S. has made with other countries allow nationals of those countries to conduct international business/trade or investments in the U.S.
  6. H-4 Visa and EAD: If your spouse holds H-1B status and has an approved I-140 petition, you may be eligible for an H-4 employment authorization document (EAD).
  7. O-Visa: You may be eligible for this visa if you possess an extraordinary ability in sciences, arts, education, business of athletics.
  8. Cap Exempt Organizations: Certain organizations are exempt from the H-1B annual numerical quota. Examples of cap exempt organizations are universities or certain non-profit organizations.

Permanent Residence (Green Card) Options:

  1. Employment-based Green Card: We have had several clients successfully pursue the PERM labor certification green card process either at the same time as pursuing an H-1B, or instead of it (when not selected in the lottery, for example).
  2. Family-Based or Marriage-Based Green Card: We have also had H-1B lottery losers pursue permanent residence through their US citizen spouse/significant other. Of course, the relationship must be a true relationship and not for immigration purposes.
  3. EB-5 Visa: The EB-5 Visa allows certain investors that invest $900,000 in designated areas or $1.8 million in other areas to pursue a path of citizenship. However, the investments are very particular and you should speak with a qualified attorney before pursuing this path. Please note that Sumner Immigration Law does not handle EB-5 cases.

Bonus – Work Remotely: If none of these visa options work out, you may be able to work remotely for the U.S. company in your home country. This could also be a good option in combination with pursuing permanent residence.

The Sumner Immigration Law team handles most of the visa classifications and processes outlined above. We are happy to help you think through your options and come up with a strategy that helps you meet your professional and personal immigration goals. If you are interested in speaking with us further, please set a time for a consultation here.

We are immigration lawyers in Richmond, VA but we serve clients throughout the US and around the world. You can call us at 804-396-3412 or send us an email to info@sumnerimmigration.com. We look forward to hearing from you.

 

 

Sumner Immigration Law is LGBTQ-friendly.