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.
Second chance at current year’s lottery
Those selected H-1B cap registrations for which an H-1B petition is not filed by the June 30 deadline will be reallocated among the wait-listed registrations. As a result, it is possible that an H-1B registration not selected in the initial March lottery could still be selected later in the year (which occurred in late July in prior years).
Existing H-1B cap registrants are automatically considered under the “second chance” lottery. No action is required. However, given the high number of non-selected registrations annually, the likelihood of selection in a “second chance” lottery, if there is one, is very low.
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.
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.
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.
E-3 for nationals of Australia
Australian citizens may be eligible for an E-3 visa, which is very similar to the H-1B visa in terms of requirements. These visas are not subject to the same cap as H-1Bs.
H-1B1 for nationals of Singapore and Chile
Citizens of Singapore or Chile may be eligible for the H-1B1 visa, which is very similar to the H-1B visa in terms of requirements. These visas are not subject to the same cap as H-1Bs.
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.
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.
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. This option is often unavailable to individuals from back-logged countries, such as India and China.
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.