What to Do If You’re Not Selected for H-1B: Alternatives to Consider

The H-1B visa program is a popular option for employers seeking skilled foreign workers to fill specialized jobs in the United States. However, due to the high demand for this visa category, the number of applications usually exceeds the annual visa cap set by United States Citizenship and Immigration Services (USCIS). As a result, USCIS conducts a lottery to select the beneficiaries for the H-1B visas.

Here are the H1-B lottery basics:

• Employers who wish to sponsor foreign workers for H-1B visas must file a petition with USCIS on behalf of the worker. The petition includes several forms and documents, including the Labor Condition Application (LCA), which outlines the job position and wage being offered.
• Once USCIS receives all the H-1B visa petitions, they randomly select enough petitions to meet the annual visa cap. USCIS conducts two lotteries: one for the regular cap of 65,000 visas and another for the additional 20,000 visas reserved for foreign workers with advanced degrees from American universities.
• USCIS notifies employers whose petitions were selected in the lottery. Typically, USCIS retains the filing fees even if they reject a petition. Nevertheless, if a petition is not picked in the yearly lottery, USCIS will reimburse the H1-B filing fees.

Your odds of winning the H1-B lottery will vary based on the number of applicants that year.

During fiscal year 2022, USCIS received 308,613 registrations and initially selected 87,500 applicants to receive the visa. They conducted two more selection rounds, one for 27,717 applicants and another for 16,753 applicants. In total, USCIS selected 131,970 registrations. For fiscal year 2023, USCIS received 483,927 H-1B registrations and selected 127,600 applicants to receive the visa.

So, what happens next if you weren’t one of the lucky selected applicants?

If your H-1B petition was not selected in the lottery, don’t despair. You can still explore several options to work and live in the United States. Depending on your qualifications, these other visas may be an excellent option to help you achieve your goal of living in the United States.

L-1 Visa for Intra-Company Transfers

The L-1 visa is a nonimmigrant visa that allows multinational companies to transfer certain employees from foreign offices to U.S. offices. The L-1 visa is sometimes called an “intra-company transfer” visa.

To be eligible for an L-1 visa, the employee must have worked for the company abroad for at least one year in the past three years in an executive, managerial, or specialized knowledge capacity. The U.S. company must also be a foreign company’s branch, subsidiary, affiliate, or joint venture partner.

An L-1 visa can be issued for an initial period of up to three years and extended in up to two-year increments, with a maximum total stay of seven years for employees in the specialized knowledge category and up to 10 years for managers and executives.

One of the significant advantages of the L-1 visa is that it allows for dual intent. L-1 visa holders can also bring their spouses and unmarried children under the age of 21 to the United States on an L-2 visa, allowing them to study and work there.

TN Visa for Canadian and Mexican Citizens

The TN visa is a nonimmigrant visa that allows citizens of Canada and Mexico to work in the United States in certain professions. The TN visa was created under the North American Free Trade Agreement (NAFTA) and is similar to the H-1B visa in that it is designed for professionals with specialized skills and knowledge.

To be eligible for a TN visa, the individual must be a Canadian or Mexican citizen and have a job offer in the United States in one of the NAFTA-designated professions. The list of professions includes various occupations, such as engineers, accountants, teachers, and graphic designers. The visa applicant must also possess the necessary qualifications and credentials for the job, such as a degree or relevant work experience.

Unlike the H-1B visa, the TN visa does not have an annual cap, and it can be granted for up to three years at a time. The TN visa can be extended indefinitely in three-year increments, and there is no limit on the number of times an individual can renew their TN visa. However, the TN visa is not a path to permanent residency in the United States. 

E-3 Visa for Australian Citizens

The E-3 visa is a nonimmigrant visa exclusively available to citizens of Australia who wish to work in the United States. The E-3 visa was created under the United States-Australia Free Trade Agreement and is similar to the H-1B visa in that it is designed for professionals with specialized skills and knowledge.

To be eligible for an E-3 visa, the individual must be an Australian citizen and have a job offer in the United States in a specialty occupation. A specialty occupation is defined as an occupation that requires a theoretical and practical application of a body of specialized knowledge, and a bachelor’s degree or equivalent is typically the minimum requirement for entry into the profession.

Unlike the H-1B visa, the E-3 visa has an annual cap of 10,500 visas, which are allocated on a first-come, first-served basis. The E-3 visa can be granted for up to two years at a time and can be extended indefinitely in two-year increments.

One of the significant advantages of the E-3 visa is that it is relatively simple to obtain compared to other work visas. The E-3 visa does not require a labor certification, and the application process is relatively simple. The E-3 visa is only valid for specific professions and is not a path to permanent residency in the United States.

O-1 Visas for Individuals With Extraordinary Abilities

The O-1 Visa categories are for people with extraordinary abilities in their specific field.

1. The O-1A visa is a nonimmigrant visa designed for individuals with extraordinary ability in the sciences, education, business, or athletics. 
2. The O-1B visa is for individuals with extraordinary abilities in the arts. This visa is designed for actors, musicians, and other performing artists.
3. The O-1B MPTV visa is a subcategory of the O-1B visa and is designed specifically for individuals in the motion picture and television industry.

To be eligible for an O-1 visa, the individual must demonstrate extraordinary ability in their field of expertise, which is typically demonstrated with documentation of past achievements, awards, and recognition. 

The eligibility requirements vary depending on the field of expertise. For example, individuals in the arts may need to provide evidence of their critical acclaim, national or international awards, or recognition from experts in their field.

An O-1 visa can be granted for up to three years and extended indefinitely in one-year increments. O-1 visa holders can also apply for a green card, which is known as “dual intent.”

One of the significant advantages of the O-1 visa is that it is not subject to an annual cap, unlike the H-1B visa. It allows for flexibility regarding the type of work an individual can do in the United States, as long as it is related to their field of expertise. This means that O-1 visa holders can work for multiple employers or be self-employed.

The O-1 visa is difficult to obtain due to its strict eligibility criteria and the extensive documentation required to prove extraordinary ability. The application process can also be time-consuming and expensive.

F-1 Student Visa

The F-1 student visa is a nonimmigrant visa allowing foreign nationals to enter the United States to study full-time at an accredited U.S. academic institution. The F-1 visa is intended for students who wish to pursue academic studies, including language training, and is often used for undergraduate, graduate, or professional degree programs.

To be eligible for an F-1 visa, the student must first apply and be accepted to an accredited U.S. academic institution. The student must also demonstrate they have the financial resources to cover their tuition and living expenses while studying in the United States. Additionally, the student must have a foreign residence that they have no intention of abandoning and demonstrate that they intend to return to their home country after completing their studies.

The F-1 visa allows for entry into the United States up to 30 days before the start of the academic program and a 60-day grace period after the program’s completion. During their studies, F-1 visa holders can work on campus for up to 20 hours per week. They can also work off-campus under certain conditions, such as practical or optional practical training (OPT), for up to 12 months after completing their studies.

One of the advantages of the F-1 visa is that it allows students to study in the United States and potentially provides a pathway to an H-1B visa in the future. The F-1 visa also allows students to bring their spouse and children to the United States on an F-2 visa, which allows them to accompany the student but does not allow them to work.

However, it is essential to note that the F-1 visa does not allow for permanent residency in the United States. Any work after the first year is subject to certain restrictions.

F-1 Optional Practical Training Extension

After completing their degree program, F-1 students may be eligible for an OPT extension, which allows them to work for an additional 24 months beyond the initial 12-month OPT period. To qualify for the OPT extension, the student must have completed a degree in a science, technology, engineering, or mathematics (STEM) field from an accredited institution in the United States.

The employment must be directly related to the student’s central area of study. The employer must comply with specific reporting requirements to ensure the student is receiving the necessary training.

H-2B Visa for Temporary Non-Agricultural Workers

The H-2B visa is commonly used by employers who need to fill seasonal or temporary positions, such as in the hospitality or landscaping industries. To be eligible for an H-2B visa, the employer must demonstrate that no qualified U.S. workers are available for the position and that the employment is temporary.

The cap for H-2B visas is 66,000. This visa is generally granted for up to one year, with the possibility of extensions in one-year increments for up to three years.

The disadvantage of this visa is that after a three-year stay, an H-2B nonimmigrant must remain outside the U.S. for three months before seeking readmission. Additionally, the H-2B visa is subject to various regulatory requirements and restrictions, and the application process can be time-consuming and expensive for employers. Finally, the H-2B visa does not provide a pathway to permanent residency in the United States like the H1-B visa.

J1 Visa: Exchange Visitor Program

The Exchange Visitor Program is a U.S. Department of State program that promotes cultural exchange and understanding through educational and cultural exchanges between the United States and other countries.

The J1 visa is designed for individuals seeking to participate in a wide range of educational and cultural exchange programs in the United States, including research, teaching, and training programs. J1 visa holders may also participate in internships and work-based programs as long as they are related to their educational and cultural exchange program.

To be eligible for a J1 visa, the individual must first apply and be accepted to a U.S. Department of State-approved program. The program sponsor will issue a Certificate of Eligibility (Form DS-2019), which the individual must use to apply for the J1 visa.

One of the significant advantages of the J1 visa is that it allows for a wide range of educational and cultural exchange opportunities in the United States. J1 visa holders can gain valuable experience in their field of study or profession and build cultural and professional networks that may benefit them in the future.

The most significant disadvantage is that after completing the exchange program, the J1 visa holder must return to their home country for at least two years before they are eligible for other U.S. visas, including H-1B and L visas.

Yes, some employers are exempt from the H-1B annual cap. This means they can petition for H-1B visas any time of the year and are not subject to the annual H-1B visa limitations.

Cap-exempt employers include:

1. Universities and colleges with a nationally-recognized accrediting agency accreditation
2. Nonprofit research organizations
3. Federal, state, or local government agencies primarily engaged in research and development activities

In addition to these categories, there are other limited circumstances when an employer may be exempt from the H-1B cap. For example, if an H-1B visa holder changes employers, or if the H-1B visa holder is returning to the United States to resume employment in the same position for the same employer.

Additionally, cap-exempt employers are not subject to the same wage requirements and prevailing wage determinations as H-1B cap-subject employers.

Yes, an employer can file a green card application on behalf of an employee without the employee being on an H-1B visa. The H-1B visa is a nonimmigrant visa, meaning it’s temporary and does not lead to permanent residency or a green card. However, an employer can sponsor an employee for a green card through “employment-based immigration.”

The employment-based green card process typically involves labor certification and filing an immigrant petition, application for adjustment of status (if the employee is in the United States), or consular processing (if the employee is outside of the United States).

The labor certification process involves the employer demonstrating that no qualified U.S. workers are available for the position and that the foreign worker’s employment will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Once the labor certification is approved, the employer can file an immigrant petition on behalf of the employee, typically done using Form I-140, Petition for Alien Worker. The employer must demonstrate the employee has the necessary qualifications for the position and the position meets specific requirements related to salary, job duties, and other factors.