Alternative Visa Options after H-1B Cap Lottery Rejection

Alternative Visa Options after H-1B Cap Lottery Rejection

by U.S. Immigration Attorney Seth Finberg

Getting selected in the H-1B lottery is exactly like getting drawn into the easiest group in the FIFA World Cup. It all comes down to simple luck of the draw. Since the FIFA World Cup has 8 groups (A-H), your country’s odds of getting placed in the easiest group is 1 of 8 (12.5%). We don’t have the exact number of  H-1B registrations this year, but many of my colleagues estimate the chances of selection to be between 10-15%. If you were one of the lucky ones to have your number chosen…congrats! Be thankful for your good fortune and hopefully your sponsoring U.S. company files a proper and timely H-1B petition and hires a qualified immigration attorney.

For the vast majority of you who weren’t selected in the H-1B lottery, what is the next step? What are your other options?

1. CAP- exempt H-1B visa

Cap-exempt H-1B visas are H-1B visas that are not subject to the annual cap and can be filed at any time. 

• Cap-Exempt H-1B employers are usually colleges/universities or recognized non-profit organizations.
• You can either get hired and sponsored directly by a Cap-Exempt H-1B employer or
• You can work concurrently for both a Cap-Exempt H-1B employer and your full time U.S. employer. 
• If you are interested in a Cap-Exempt H-1B visa, it is best to contact an immigration attorney who handles such matters.

2. O-1 visa for those with extraordinary ability

The O-1 visa is a nonimmigrant visa for individuals who possess extraordinary skills and abilities, or demonstrated extraordinary achievement in the entertainment industry, nationally or internationally. 

• O-1s are not the easiest visas to get but if you can qualify for one, they are among the best to have. There is no annual cap, no prevailing wage, and you can also file one at any time. 
• If you are an impressive candidate, especially someone with an advanced degree and at least exceptional ability in a specific field, it may be worth talking with an immigration attorney to see if you could qualify for an O-1 visa. 

3. Pursue a graduate U.S. degree (F-1 visa)

You may consider pursuing a U.S. Master’s Degree that could raise your chances for a future H-1 selection. 

20,000 H-1B visas are reserved for those with a U.S. Master’s degree (or higher) and having a U.S. Masters gives you a better chance of H-1B lottery selection. Additionally, U.S. Masters may help you find a higher paying U.S. job and a better chance at other U.S. visas/ green cards.

4. L-1 visa for managers and executives 

If you are already working in a high ranking role for your foreign company, you may be eligible for an L-1 visa. This visa is for employees of multinational companies who are transferred to their companies’ foreign office in the U.S. The L-1 allows for intra-company transfers to employees such as managers, executives, and specialized knowledge workers. 

If you are unable to obtain an H-1 visa, you may want to consider other employment opportunities outside of the United States. I’m an immigration attorney therefore my goal is to find immigration solutions for my clients here in the United States. However, my job is also to provide the best options for my clients and sometimes that entails thinking outside the box. From time to time, I have recommended that my clients consider Canada as a short term immigration path. Currently a number of my clients are Canadian and many were not originally from Canada. If you are at all considering Canada as a possibility, contact me and I can recommend some good Canadian immigration attorneys. 

It’s also important that you consult with an attorney who could help you determine which alternatives to explore and identify any issues with your application. An experienced immigration attorney has extensive experience and knowledge of complex US immigration laws and regulations. Working with one will give you peace of mind, knowing that your visa application is being handled by a professional who has your best interests at heart, as well as increase your chances of success by helping you navigate the entire application process in the best possible light.