Not Selected in the H-1B Cap? You Still Have Options

The H-1B visa is one of the most common US work visas, which allows for work in a specialty occupation position. Because the demand for H-1B visas far exceeds the number of H-1B visas available in any given year, most initial H-1B employee beneficiaries are subject to the annual H-1B Cap Lottery.

The H-1B Cap Lottery for Fiscal Year 2025 closed on March 25, 2024, and the results of the lottery were posted on April 1, 2024.  For individuals who were not selected in this year's H-1B Cap Lottery, there are still options available to remain in the US and secure US work authorization. Below are some alternatives to the H-1B visa.

H-1B Work Authorization for a Cap-Exempt Employer

Not all H-1B employment is subject to the Cap. The following employers may file cap-exempt petitions at any point in the year:

• • Institutions of higher education or affiliated nonprofit entities;
  • Nonprofit research organizations; and
  • Government research organizations.

Cap-subject employers may employ H-1B visa holders who have concurrent cap-exempt employment. The employee must maintain employment with the cap-exempt employer for the duration of the H-1B validity period, and risks apply.

F-1 Work Authorization Options

Certain international students may be able to obtain extensions of US employment authorization through Optional Practical Training (OPT). Non-STEM (Science, Technology, Engineering and Mathematics) graduates are eligible for up to 12 months of work authorization after graduation. Graduates of US STEM programs are eligible for up to 36 months of work authorization after graduation. Employers of STEM OPT workers must be enrolled in E-Verify to qualify.

Individuals not selected in the H-1B cap lottery may choose to enroll in a new US university program and work pursuant to F-1 CPT while completing their degree. However, there are risks to this approach including the heightened risk of a request for evidence (RFE) on a future H-1B petition.

It is therefore critical to research the university before enrollment and maintain a record that the individual was a bona fide student, including course syllabi, receipts for campus transportation and/or textbooks, etc.

Dependent Work Authorization Tied to a Spouse’s Employment

Spouses of E-2, E-3, H-1B and L-1 visa holders may be eligible for work authorization:

• • Spouses of E and L visa holders are work-authorized incident to status as listed on the I-94 admission document.
  • Spouses of H-1B visa holders are eligible only if the H-1B visa holder has reached a critical milestone in the green card process. Eligible H-4 spouses must apply for an employment authorization document (EAD).

Country-Specific Visa Categories Similar to H-1B

Nationals of countries maintaining trade agreements with the US may benefit from country-specific work visas, including:

• • TN visas for nationals of Canada or Mexico working within one of the professional occupations listed on the USMCA Schedule;
  • H-1B1 visas for nationals of Chile or Singapore working in a specialty occupation; and
  • E-3 visas for nationals of Australia working in a specialty occupation.

Note that these visa categories do not have a clear path to a green card. Continued entry in the annual H-1B cap lottery is recommended for long-term stays in the US.

E-1/E-2 Visa for Treaty Traders & Investors and their Employees

Treaty trader (E-1) or treaty investor (E-2) visas are available for nationals of a country with which the United States has a treaty. E-1/E-2 visas are available for executive-level and specialized essential employees of treaty traders and investors who possess the same nationality as the treaty trader or treaty investor company. For example, a French national working for a French company with operations in the US may qualify.

Note that these visa categories do not have a clear path to a green card. Continued entry in the annual H-1B cap lottery is recommended for long-term stays in the US.

O-1 Visa for Individuals with Extraordinary Ability

Individuals with extraordinary ability in the sciences, education, arts, business, and athletics may qualify for an O-1 work visa. Guidance published in January 2022 addresses O-1 eligibility for PhDs in STEM fields, as well as broader O-1A evidentiary criteria for those working in STEM fields.

Note that this visa category does not have a clear path to a green card. Continued entry in the annual H-1B cap lottery is recommended for long-term stays in the US.

L-1 Visa for Intracompany Transferees

To become eligible for an L-1 visa, the individual must take up employment with a foreign entity that maintains a qualifying corporate relationship with the L-1 petitioning entity in the US. The individual will become eligible for the L-1 visa when the following criteria are met:

• • The US petitioner and the foreign entity are doing business and maintain a qualifying corporate relationship;
  • The individual has been employed with the qualifying foreign entity for at least one continuous year in the three years immediately preceding the US transfer; and
  • The nature of the qualifying foreign employment and the prospective US employment is in a managerial or specialized knowledge capacity.

Green Card Options

Although not an immediate source of work authorization, a green card application will provide a path to long-term US work authorization. It is a common misconception that all employment-based green cards require employer sponsorship. In fact, certain categories allow an individual to self-petition for a green card:

• • EB-1 petition for individuals of extraordinary ability: Applicant must demonstrate extraordinary ability in the sciences, arts, education, business or athletics through sustained national or international acclaim; and
  • EB-2 petition with National Interest Waiver: Applicant must have an advanced degree or exceptional ability and demonstrate the following criteria:
    • • The proposed endeavor has both substantial merit and national importance;
      • Applicant is well positioned to advance the proposed endeavor; and
      • On balance, it would be beneficial to the US to waive the requirements of a job offer, and thus the labor certification.

Need to know more?

For further information or if you have questions about the H-1B Cap, please reach out to Senior Associate Sarah Melnick at [email protected].

This blog was published on April 12, 2024, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, X, Facebook and Instagram.