Not Selected in the H-1B Lottery? Now What?

Each year in March, U.S. Citizenship and Immigration Services (USCIS) conducts a lottery to award H-1B slots to enough foreign workers to meet its 85,000 visa annual cap. This number includes 20,000 slots reserved for candidates who earned a Master's degree or higher from a U.S. educational institution.

USCIS recently concluded this year's initial H-1B lottery. Given the high number of lottery registrations and the fixed number of available slots, it is inevitable that many employers will receive few, if any, lottery selections. Although USCIS may conduct a subsequent lottery selection if additional visa slots remain after the initial filing period, many employers and employees may already be questioning their options moving forward.

This Holland & Knight alert sets forth some common alternative immigration options if you have critical employees whose registrations were not selected in the lottery.

Try Again Next Year

If an employee was not selected in this year's H-1B lottery but he or she remains work authorized for another year or more, there will be an opportunity to enter that employee into next year's lottery.

H-1B Cap Exempt Employers

Certain employers are considered exempt from the H-1B cap. Those employers include institutions of higher education or related/affiliated nonprofit entities and nonprofit or governmental research organizations. If an employee maintains a qualifying H-1B position with a cap-exempt employer, he or she may be eligible to work for the organization on a concurrent basis so long as he or she remains employed by the cap-exempt employer for the duration of the H-1B period of authorization. Employees may also qualify for H-1B cap-exempt status if they are placed at a cap-exempt employer's location as a worksite.

F-1 Students

Employees in the United States in F-1 student status may be eligible for 12 months of optional practical training (OPT). In some cases, student visa holders are eligible for up to 36 months of work authorization if their degrees were in a qualifying STEM field. Some degree programs allow F-1 students to work on a full- or part-time basis pursuant to curricular practical training (CPT) while completing their degrees. Employees currently on F-1 student visas are encouraged to speak with their designated school official (DSO) to identify work authorization options pursuant to OPT, STEM optional practical training (STEM OPT) or curricular practical training (CPT).

F-1 students may also consider going back to school to earn a more advanced degree in the United States.

O-1 Visa

O-1 visas are reserved for individuals who have extraordinary ability in the sciences, education, business, arts or athletics, or who have shown extraordinary achievement in the motion picture or television industry. While this visa category has robust requirements and a high bar for approval, it may provide work authorization in the United States for an initial period of three years with extensions permitted in one-year increments. There is no maximum number of extensions for O-1 visa holders.

E-3 Visas for Australian Nationals

An employee with Australian citizenship may be eligible to apply for an E-3 visa if the position qualifies as a specialty occupation and the employee is qualified for the position. These visas are valid for two-year periods with extensions permitted in additional two-year increments. There is no maximum number of extensions for E-3 visa holders.

TN Visas for Mexican and Canadian Nationals

An employee with Mexican or Canadian citizenship may be eligible to apply for a TN visa if the position is designated under the U.S.-Mexico-Canada Agreement (USMCA) – Chapter 16, Appendix 2 List of Professional Occupations. These visas are generally valid for three-year periods with extensions permitted in additional three-year increments. There is no maximum number of extensions for TN visa holders.

L-1 Intracompany Transfer

The L-1 intracompany transfer visa is for managers, executives or individuals with specialized knowledge who have worked for a related entity abroad for more than one full year and who are transferring to the U.S. to work in a similar capacity. If a company has international operations or the ability to send employees abroad to work remotely in a country where they are work authorized, then the L-1 visa may be an option.

J-1 Visas

J-1 visas are granted through U.S. Department of State-approved programs for teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or receiving graduate medical education or training. This may provide an alternative to the H-1B visa for certain occupations, such as professors, research assistants, research scholars and others.

Dependent Spouses

In some cases, if the employee is married to someone on a different visa type (e.g., L-1, H-1B, E, etc.) or to a U.S. citizen, he or she may be eligible for work authorization as a dependent spouse.

Green Card

There are many types of green cards available to foreign workers. Some green card types can provide an accelerated path to U.S. work authorization while others can take years. Eligibility for the various types of green cards must be made on a case-by-case basis, but in some circumstances, the employee may be eligible for an accelerated path to work authorization and, ultimately, permanent residence.

There are many potential options available to those employees who were not selected in this year's H-1B cap lottery. Determining the best alternative strategy will depend on an individual's nationality, qualifications, immigration status and more. For more information or counsel regarding these options and others, as well as how they apply to your company's workforce, please contact a member of Holland & Knight's Immigration Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.