What to do If You Can’t Obtain an H-1B Visa Through the Lottery Process

It can be a very disappointing experience for everyone involved, to receive a notice from USCIS that the H-1B visa quota has been met for the year and you have not been selected to receive an H-1B visa in the lottery process. The attorneys at The Law Firm of Shihab and Associates, LPA have over 50 years of combined experience in a variety of complex legal matters, and we can help you to find an immigration strategy to best meet your particular needs. Please contact us today.

What Other Options are Available?

One option that may be available to you is if you are the holder of a Master’s degree or higher from a U.S. institution. This will qualify you for one of the 20,000 visas reserved each year for advanced degree holders. These tend to run out much more slowly, and if you do not receive one in the lottery, you still get a “second chance” for one of regular 65,000 visas for Bachelor’s degree holders. You can even petition under this category, if you anticipate receiving your U.S. advanced degree in between the time you apply for your petition and the beginning date of your H-1B employment.

Another great option, is if you are an F-1 student visa holder, and you qualify for the Optional Practical Training (OPT) visa program. This is a great program that will allow you to work in the U.S. in a job that is directly related to your field of study. This lasts for a period of 12 months. In addition, if your field of study is in a STEM field (science, technology, engineering, or mathematics,) you can participate in the STEM OPT extension which lasts 17 months. You must work for an employer that participates in the e-Verify program, which is a free online system for businesses to determine eligibility of employees for work in the U.S., and you must have received practical training and employment authorization related to your STEM degree. The OPT and STEM OPT programs can allow you to bridge the gap until the next year’s H-1B season.

You may also be able to avoid the H-1B visa cap, if your employer/petitioner is a “cap exempt” institution. These are qualifying institutions of higher education, (i.e. colleges and universities,) affiliated or related nonprofit entities, or governmental or nonprofit research organizations. To qualify, you must work at a qualifying institution at least 51% of your work time. A “related or affiliated” nonprofit entity can be any entity that has a formal, written affiliation agreement with a qualifying institution.

If you are a foreign national from certain specific countries, you may be able to bypass the H-1B visa altogether. There are some excellent H-1B alternatives that are less expensive, easier to obtain, with longer durational periods for nationals from specific countries. For example, the TN visa is a great option for professionals from the NAFTA countries of Mexico or Canada. This is an excellent option if you have been offered a position in the U.S. as an accountant, architect, computer systems analyst, engineer, lawyer, medical professional, scientist, teacher or several other professional occupations. The professions do not need to be a “specialty occupation,” and there is a wider range of professions that apply. While a temporary visa, there is no limit on the length of your stay within the U.S., and no yearly visa cap. Mexican nationals must apply for this type of visa at a U.S. consulate before entry into the U.S. Beyond the TN visa, if you are a national of Chile or Singapore, you may apply for the H-1B1 visa, and Australian nationals may apply for the E-3 visa. These visa types have their own separate caps and are much easier to obtain than an H-1B visa, and are a great option for nationals from these countries.

Finally, another potential option for you may be to obtain permanent residency without applying for an H-1B visa. Green card applications are not dependent on your H-1B status. Certain kinds do not even require the sponsorship of an employer. You may be able to get an EAD directly after your F-1 OPT visa after filing your permanent resident petition.

Contact Us

There are potentially many additional kinds of visa options that are available to you, when you are unable to obtain a visa through the H-1B lottery process. At Shihab and Associates, we have decades of experience in such matters. To learn more about your visa options, or for any other immigration matter, contact us today to consult with one of our experienced immigration attorneys.

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