H-1B Lottery: What to Do If You're Not Selected

Now what? Depending on the time of year, it may not be over yet. If you weren’t selected in the first round of H-1B selections, there is a possibility that after processing the first round of H-1B applications, USCIS will determine if they have allocated all 85,000 H-1B visas or if they will run a second round of selections. However, your current work authorization and employment opportunities may not be able to wait this out. So, what are your options?

Concurrent H1B

If you are working for a cap-exempt organization, you can concurrently file another H-1B with a cap-subject employer and maintain or start working for the prospective employment. However, the catch is to have concurrent employment with a cap-exempt organization.  Cap-exempt organizations are not subject to the annual H-1B cap and thus there is no lottery and no limit on annual petitions and these applications can be submitted at any time of the year. Cap-exempt organizations are institutions of higher education (or related non-profit entities), non-profit research organizations, and government research organizations.  

O1 Extraordinary Ability

If you have established achievement in your field of expertise, you may qualify for an O1. People often think that you need to be “extraordinary” to qualify for this visa however, you may be “extraordinary” and not even know it. To qualify for this visa you need to show that you meet the eligibility criteria which for the O-1A visa, is 3 of the following: national or international awards for excellence in your field, critical employment with a distinguished reputation, press and/or published material about you in professional or major trade publications, or other media, judging the work of peers in your field, memberships in associations that require outstanding achievements of their members, high renumeration, authorship of scholarly articles in major publications, and original contributions of major significant to your field. Although the language is very specific, people in various industries can demonstrate eligibility with varying evidence. Our office offers O1 assessments to work with you to determine if you are likely eligible or if you should spend some more time building up your profile prior to applying.

L1 Intracompany Transfer

If your employer (or potential employer) has foreign offices, you can work with them to see if they will transfer you to one of these offices. If you work for their foreign office for at least one full continuous year in a specialized knowledge role or managerial role you could then be transferred to their U.S. offices in a specialized knowledge or managerial role. The limitation to this is that you will be tied to your employer however you could use this time to work on qualifying for other work visas (like building up an O1 profile) and/or green card routes.

Go Back to School

If you had the interest to or financial means to pursue higher education in the U.S. that may be an option to secure your stay and some future work authorization. However, school likely does not begin immediately. There are certain master’s programs which will allow students to work full-time on CPT from the first day of their program, commonly referred to as “Day-1 CPT” as their start dates are generally throughout the year so timing is more flexible. However, it is important to be very careful and diligent when pursuing such programs as historically many of these programs issue CPT without administering a legitimate course of study and thus immigration officials are quite critical of such programs. If you do pursue such a program, it is important to keep detailed records of your course of study.

Get the Green Card Started

Regardless of whether you were selected in the H-1B lottery or not, if you have long-term plans for your stay in the U.S. it is highly recommended to start strategizing on your green card options as soon as possible, as processing times and government wait times can be quite lengthy. You do not have to have underlying work authorization in the U.S. to pursue a green card application (however, you do need underlying work authorization to work in the U.S. during most of that time). There are various employment based green card routes that may be available to you, including the National Interest Waiver (EB-2 NIW), Extraordinary Ability (EB-1A), Outstanding Professors and Researchers (EB-1B), Multinational Executives (EB-1C) and PERM.

Move North!

Canada is not too far and is on similar time zones to the U.S. There are various work permits and permanent resident routes to Canada which may be a viable option while you wait for your U.S. green card priority date to be current or wait to attain Canadian citizenship so you can pursue a TN visa with your employer, or an E-2 visa to start your own company in the U.S. Our office provides Canadian immigration legal services as well.

Hopefully this gave you an overview of options that may be available to you in your U.S. immigration journey. Every case is case specific and should be reviewed with an immigration attorney before moving forward with an option. We are here to help guide you through the process. Book a consult today or reach out if you have any questions!

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