Here is an overview of the alternative visa options for those employees whose H-1B lottery registrations were not selected in the annual H-1B cap-subject lottery.
File an H-1B registration in next year’s lottery
There’s always next year. Employers can always try again but maintaining a foreign national employee’s employment authorization if they are in the US in another status, is a key consideration and often a challenge.
Additional program of study
Foreign nationals not selected in the H-1B lottery and approaching the end of their F-1 optional practical training (OPT) or the two-year STEM OPT extension may consider returning to school for another program of study.
Sometimes, this option allows an individual to obtain employment authorization based on curricular practical training (CPT). Generally, F-1 students are not authorized for employment during the first academic year of the program unless such employment is an “integral part of the established curriculum.” Eligibility for CPT is determined by the individual’s school, and all off-campus employment must be approved by the school and reflected in the individual’s F-1 SEVIS record and Form I-20.
While not a long-term substitute for the H-1B, this can be a useful short-term strategy to maintain lawful status while planning future attempts at the H-1B visa lottery 2025 or exploring alternative options to the H-1B visa.
Concurrent employment with H-1B cap-exempt employer
The annual quota for H-1Bs does not apply to some employers, known as “cap-exempt” H-1B employers. These employers can submit H-1B petitions at any time and are not required to go through the annual lottery process. H-1B cap-exempt employers include:
- Institutions of higher education
- Nonprofit entities related to or affiliated with an institution of higher education (e.g., nonprofit teaching hospitals)
- Some nonprofit or governmental research organizations
If a foreign national is employed in H-1B status with a cap-exempt employer, even part-time, they may be eligible to work concurrently for a cap-subject H-1B employer. However, a foreign national employed by a cap-exempt employer in H-1B status cannot transfer that H-1B status to a cap-subject employer and give up the cap-exempt employment.
Legal guidance is recommended to structure concurrent employment appropriately and ensure immigration compliance.
E-1 and E-2 treaty trader or investor
The E-1/E-2 visas allow nationals of countries with which the US has trade treaties to receive an E-1 (treaty trader) or E-2 (treaty investor) visa based on significant trade with or investment in the US by a qualifying US enterprise (i.e., one that is ultimately owned by nationals of the treaty country). Employees must be coming to the US to perform managerial, executive, or essential roles. Spouses of E-1 and E-2 visa holders are authorized to work in the US for any employer pursuant to their E-1S or E-2S status.
H-4 dependent status
If a foreign national is married to an H-1B visa holder with an approved I-140 petition but who is unable to file an Adjustment of Status Application due to per-country limits (typically citizens of India and China), then the foreign national, if in H-4 dependent status, is eligible for an EAD card. This can be a helpful strategy for families exploring options.
L-1 intracompany transferee
The L-1 visa allows multinational companies to transfer their employees from their overseas offices to their US offices (or to establish a new US office).
Foreign nationals currently in the US generally will not qualify for an L-1 visa. However, a US employer with a subsidiary or affiliate abroad could potentially transfer the foreign national to the entity abroad for one year and then bring them back to the US on an L-1 visa, provided the individual is a manager, executive, or possesses specialized knowledge.
L-2 dependent
If a foreign national is married to an L-1 visa holder, then the foreign national is entitled to L-2 dependent status. L-2 spouses are eligible to work by virtue of their L-2S status.
O-1 or P-1 extraordinary ability visas
O-1 and P-1 visas are available to individuals with extraordinary or unique abilities in the sciences, arts, education, business, or athletics. These categories require a higher level of documentation and recognition but are an alternative for those not selected in the H-B1 lottery.
TN visas for Canadian and Mexican professional workers
Citizens of Canada and Mexico in certain occupations, can qualify for the TN visa classification. The TN visa is not subject to a cap and can be obtained either by applying at the border (for Canadians), filing at a US consulate (for Mexicans), or by filing a petition with US Citizenship and Immigration Services (USCIS) (for Canadians or Mexicans already in the US in TN or another non-immigrant status).
Green card filing
Another option may be to pursue an employment-based green card. This may be a viable option if there is enough time to get through an Application for Permanent Employment Certification (PERM) application, I-140 Immigrant petition, and employment authorization document (EAD) issuance associated with the I-485 Adjustment of Status application before the foreign national’s current employment authorization, such as OPT, expires.
Working remotely from abroad
In some cases, if no option is available to continue working from within the US, a foreign national may be able to continue employment with a US employer from abroad.
While US immigration law does not come into play for foreign nationals working abroad, employers and employees need to consult with an international tax law attorney licensed in their location of employment, as there may be tax and other local law implications to consider prior to starting remote work.
Frequently Asked Questions
What happens if an employee is not selected in the H-1B visa lottery?
If an individual is not selected in the H-1B visa lottery, they are unable to proceed with an H-1B petition for that fiscal year. However, there are several alternative options to the H-1B visa that may allow the employee to remain in or return to the U.S. in a different visa category.
What should I do if I’m not selected in the H-1B lottery?
If your H-1B visa lottery application was not selected, explore other pathways such as cap-exempt H-1Bs, O-1 visas for individuals with extraordinary ability, L-1 intracompany transfers, or F-1 STEM OPT extensions. Legal counsel can help identify the most viable options.
Can I apply again if my H-1B was not selected?
Yes, you can re-enter the H-1B visa lottery each year, provided you meet eligibility requirements.
Are there organizations that can sponsor H-1B workers outside the lottery?
Yes. Certain nonprofit research institutions, universities, and government research organizations are cap-exempt and can sponsor H-1B petitions year-round, regardless of the lottery. This can be a valuable route for those repeatedly not selected in the H-1B lottery.