Options if Not Selected in the H1B Lottery

For those not selected in the H1B cap-subject lottery, some options are discussed in this article, including transferring to another F-1 program of study, finding cap-exempt employment or determining if another nonimmigrant option is viable. There also are options for nationals of certain countries like Chile, Singapore, Australia, Canada, and Mexico.

Background

Generally, approximately 85,000 cap-subject H1B petitions are available each fiscal year, which includes 65,000 regular H1Bs and 20,000 H1Bs for graduates of masters’ programs (or higher-level education) from nonprofit U.S. universities. Due to the large demand for H1Bs, there is an annual H1B lottery for the 85,000 available numbers.

The annual H1B lottery is an electronic registration process implemented by the U.S. Citizenship and Immigration Services (USCIS) to select prospective petitioners seeking to file H1B cap-subject petitions. The USCIS instituted the current electronic registration process just a year ago, in 2020, to streamline processing of cap-subject H1B filings. The selection of a registration provides the prospective employer with an opportunity to file an H1B petition on behalf of the foreign national listed, such as an F-1 student working on F-1 optional practical training (OPT). If the USCIS does not select the employer’s registration application, eligible individuals may still have options to continue living and working in the United States.

Transfer to a Different Program of Study

Full-time students not selected in the H1B lottery and who are approaching the end of their F-1 optional practical training (OPT) or the two-year STEM OPT extension for eligible students in science, technology, engineering, and mathematics fields, may consider transferring to another program of study. Sometimes, this option allows an individual to pursue employment authorization based on curricular practical training (CPT). Generally, F-1 students should not engage in employment during their first academic year. However, since the student has completed an academic program in the U.S. in F-1 status prior to transfer, this restriction would not apply. Therefore, an F-1 student in this scenario potentially would be eligible for an immediate grant of CPT provided all other requirements are met – most importantly that CPT is an “integral part of the established curriculum.”

Although technically permissible, the USCIS often determines that a student employed on “day one” CPT during a substantial portion of the course of study, has violated F-1 status by engaging in improperly authorized employment. The basis for such a determination is that the students are not adhering to the purpose of the F-1 visa, which is primarily to study. Based on such a determination, the USCIS may deny a future immigration benefit, such as an extension or change of status (e.g. in connection with a future request for change of status) to another valid status within the U.S.

Employment Opportunity with H1B Cap-Exempt Employer

The annual quota or limit on H1Bs does not apply to some qualifying employers who are not subject to the annual H1B limitation. H1B cap-exempt employers include institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations. Employment with a cap-exempt employer may provide an alternative option to those foreign nationals not selected in the H1B lottery.

If, after working in H1B status with a cap-exempt employer, a foreign national decides to work with an employer that is subject to the H1B cap, then, generally, the foreign national will have to file in the H1B lottery in the future. There are exceptions, with restrictions, for those who work “at” a cap-exempt employer’s work location or if a person has concurrent H1B employment with a cap-subject and a cap-exempt employer. Those details are beyond the scope of this overview.

Countries with Qualifying Treaties with the U.S.

Some additional nonimmigrant categories may also be available to individuals who are citizens or nationals of certain countries. For example, individuals who are nationals of Chile or Singapore may be eligible for employment in H1B1 status, subject to the annual limitation of 1,400 visas for Chileans and 5,400 for Singaporeans. Unlike the H1B visa, the H1B1 visa does not carry dual intent and periods of stay are two years rather than three years at a time.

Additional categories of employment visas for foreign nationals of certain countries include the E-3 visa for Australian nationals and the TN visa for Canadian and Mexican nationals.

There are also the options of the E-1 treaty trader and the E-2 treaty investor visas for foreign nationals of certain countries with qualifying treaties with the U.S.

Other Nonimmigrant Options

Those who have worked abroad for at least a year with a qualifying organization may be able to enter the U.S. to work in the L1A or L1B status. A person may be eligible based on outstanding ability for the O-1 status, or for J-1 status. It is wise to undertake the research or consult with an immigration lawyer to go through the alphabet soup of nonimmigrant options to determine eligibility under some other nonimmigrant options.

Working Remotely from Abroad

In some cases, if no option is available to continue working from within the United States, a foreign national worker may be able to continue employment with a U.S. employer from abroad. Generally, remote employment may be a viable option for F-1 students who have exhausted their OPT and have not been selected in the H1B lottery. While U.S. immigration law does not come into play for foreign nationals working in their home country of citizenship, interested individuals are advised to consult with an international tax law attorney licensed to practice in the locality of employment, as there may be tax implications to be considered prior to starting remote work. Moreover, certain high-security jobs may require the person to be physically present in the U.S.

Conclusion

Although many foreign nationals rely on the H1B status to temporarily live and work in the United States, there are alternative options to consider if the H1B option is not available. These options may provide foreign nationals with the ability to continue working either in the United States for the U.S. employer or continue that employment while residing abroad. It is important to consider the unique facts and circumstances of each individual’s case when determining viable options for individuals not selected in the H1B lottery. The Murthy Law Firm has significant experience in assisting foreign nationals to evaluate options. We recommend a consultation with one of our knowledgeable attorneys for those wishing to explore if any option applies for you.

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.