Employees not selected in the H-1B Lottery

Plan Now For Employees Not Selected in the H-1B Lottery

With less than a 20% chance of being selected in the H-1B lottery, employers should plan now for employees not selected in the H-1B lottery. The annual quotas for cap-subject H-1B visas is 65,000 for specialty occupation professionals and 20,000 for such professionals who hold a master’s or higher degree from an accredited U.S. university. 

Due to the large demand for H-1B visas, U.S. Citizenship and Immigration Services (USCIS) holds an annual electronic registration-based lottery to determine who may petition for the distribution of these 85,000 visas. The odds of being selected are approximately one in six. Therefore, most registrants are not selected and employers must seek alternative ways for their valued employees to continue living and working in the United States. If a foreign national employee still has enough time remaining in another nonimmigrant status, they can be registered in subsequent lotteries in the hope that they are selected. 

This article discusses those options that are available to workers who are not selected in the lottery.

Possible Options For Employees Not Selected in the H-1B Lottery

Treaty-Based Nonimmigrant Options – E-3, H-1B1, TN


Citizens of Australia may qualify for the E-3 category, which is reserved for specialty occupation professionals and is very similar to the H-1B but does not have the same restrictive quota as the H-1B.  The E-3 is valid for two years and can be extended in two-year increments indefinitely for as long as the foreign national maintains nonimmigrant intent (does not intend to remain in the U.S. permanently).


Citizens of Singapore and Chile may be eligible for H-1B1 classification, which is also very similar to the H-1B category for specialty occupation professionals but with much lower numerical limitations that are not subject to a lottery and are never exhausted (6,800 allotments total, with 5,400 from Singapore and 1,400 from Chile).  H-1B1 nonimmigrant professionals are admitted for one year and can renew their status in one-year increments indefinitely as long as they can demonstrate that they do not intend to remain or work permanently in the United States.


Citizens of Mexico and Canada who work in select occupations may qualify for the TN category.  This category does not have a numerical cap and can be extended indefinitely.  Canadian citizens may apply at the border whereas Mexican citizens must apply at a U.S. consulate.  Both nationalities may change their status to TN from within the United States if they are currently present in another nonimmigrant status.  TN status is valid for an initial period of three years and is renewable indefinitely.  The foreign national must maintain nonimmigrant intent to benefit from the TN category.

Other Nonimmigrant Options – L-1, O-1, J-1


The L-1 category permits multinational companies to transfer certain employees (managers, executives, or individuals with specialized knowledge) from their offices abroad to their offices in the U.S.  Changing status to this category from within the U.S. is not always feasible because the employee must have worked for the company abroad for at least one year out of the three years immediately preceding entry into the U.S.  However, a U.S. company may transfer an employee to work for its affiliate or subsidiary abroad for one year and then transfer them back to the United States on an L-1 visa, either individually or under the company’s approved Blanket L petition where applicable.


Individuals who have extraordinary (unusual) ability in the sciences, arts, business, education, or athletics may be eligible for the O-1 category.  To qualify, the foreign national must be able to demonstrate that they have risen to the very top of their field of endeavor as evidenced by certain criteria such as outstanding contributions of major significance to their field, publications by the individual in major media or trade publications, publications by others about the individual and their work, and judging the work of others in their field.  These achievements may occur during an advanced degree program so the O-1 category is worth exploring for recent graduates. 

The individual must demonstrate that they will continue to work in their area of expertise in the United States.  This category is valid for an initial period of three years followed by indefinite one-year extensions (or, at times, three-year extensions) provided that there is no intent to permanently stay in the U.S.


Some occupations that qualify under the H-1B program may also be eligible for the J-1 exchange visitors category administered by the U.S. Department of State (DOS) through DOS-designated sponsors.  These include business trainees, interns, research scholars, research assistants, medical residents, primary and secondary school teachers, and college professors. 

The drawback is that the J-1 is of a more limited duration (the maximum stay depends on the specific J-1 category) and some participants are subject to a two-year home residency requirement where they must return to their country of origin for two years before becoming eligible for an H-1B, an L-1, or permanent residence.  Participants may apply to have the two-year requirement waived based on a no-objection statement from the home country embassy, a request by an interested U.S. federal government agency, fear of persecution, exceptional hardship to a U.S. citizen or permanent resident spouse or child, or a request by a designed State Public Health Department (known as the Conrad State 30 program).

Dependents of H-1B Status Holders With Approved I-140 Petitions

An individual who is married to an H-1B status holder who in turn is the beneficiary of an approved I-140 immigrant visa petition may qualify to apply for work authorization as an H-4 dependent.  If selected in a subsequent H-1B lottery, the employee may apply to change their status from H-4 to H-1B.

Returning to School – New F-1 Study Program

Individuals currently in F-1 student status and approaching the end of their work eligibility pursuant to optional practical training (OPT) or the 24-month STEM OPT authorization for graduates in certain science, technology, engineering and mathematics disciplines may opt to return to school to pursue a higher program of study such as a master’s degree or a Ph.D. 

Following graduation, an individual would be eligible for new OPT work authorization based on their higher level of education.  Also, depending on the school and program, pursuing a new degree may permit off-campus curricular practical training (CPT) work authorization as part of the curriculum.  The drawback to this is that CPT is generally unavailable during the student’s first academic year.  What is known as “Day 1 CPT”, providing for CPT work authorization immediately upon matriculation and continuing throughout the program, could be determined by USCIS to be a violation of F-1 status due to engaging in improperly authorized employment. 

Individuals should speak to immigration counsel regarding programs advertising Day 1 CPT as well as of schools who are accredited solely by the Accrediting Council for Independent Colleges and Schools (ACICS), which USCIS no longer recognizes as an accrediting agency for immigration purposes. Additionally, if returning to school in F-1 status, students must intend to complete the new degree program.

Green Card Options

An employer may want to consider sponsoring a foreign national for a green card in one of the many available employment-based categories.


A similar counterpart to the temporary O-1 category is the permanent EB-1A category for individuals of extraordinary ability in their field of expertise.  This category is a viable option for individuals of unique ability in the fields of science, business, the arts, education, and athletics who have achieved national and international acclaim and risen to the very top of their field. 

While the standards for an approval are higher, USCIS regulations apply the same criteria for EB-1A classification as used for O-1 visa classification, including the foreign national’s original contributions of major significance to the individual’s field of endeavor, employment in a critical or essential capacity for organizations with distinguished reputations, receipt of national or international awards or prizes for excellence in their field, and membership in professional associations that require outstanding achievements of its members.  This category does not require a test of the U.S. labor market prior to application.


This category is reserved for outstanding researchers and professors who can demonstrate international recognition for outstanding achievements in an academic field.  To qualify, an individual must show that they meet two of six criteria including receipt of major prizes or awards for outstanding achievement, membership in associations that require outstanding achievement of their members, published material about the individual’s work in the academic field, judge of the work of others in the same or allied academic field, original scientific or scholarly research contributions to the field, and authorship of scholarly books or articles in international field journals.  This category also does not require a test of the U.S. labor market prior to application.


Multinational companies may wish to transfer their manager or executive employees from their offices abroad to work in the United States.  In this way, the EB-1C is similar to the L-1 nonimmigrant category.  The employee must have worked for the company abroad in a managerial or executive capacity for at least one year out of the three years immediately preceding the petition or their most recent lawful admission (if already working in the U.S. in a nonimmigrant status).  The U.S. entity must have been doing business in the U.S. for at least one year and have a qualifying relationship with the entity abroad that employed the manager or executive.  No labor market certification is required.


A labor market certification called PERM is required for the EB-2 and EB-3 green card categories.  Due to the amount of time required to have a PERM certified (followed by the required steps of an I-140 petition approval and receipt of an EAD associated with an I-485 application), this may not be a feasible option for many foreign nationals who have limited time left in a nonimmigrant status. 

This option, too, would not be viable for individuals from visa-backlogged countries such as Mexico, India, China, and the Philippines as they would not be able to file their I-485 applications until their priority dates became current (until visas became available to them based on worldwide and per-country green card quotas).

Working from Abroad

If there are no options available to continue working in the United States, an employer may wish to continue employing an individual from abroad, either remotely or at a branch of the company outside the U.S.  Necessary adaptations to the Covid pandemic and the modern lifting of technological constraints have made remote working arrangements much easier for companies of all sizes.  Multinational companies would benefit from transferring certain employees abroad for at least one year to qualify them for an L-1 temporary visa or EB-1C permanent visa.


The H-1B program is relied upon by many employers seeking to hire and retain foreign national employees and it is disheartening to have critical employees not selected in the H-1B lottery.  However, alternatives are available for employees based on their individual circumstances and the facts of their case.  It is important to consult with a knowledgeable immigration attorney to determine the best option for each employee.  Maggio Kattar attorneys are experienced in navigating the complex immigration labyrinth and helping employers determine the best routes to take with their international workforce.  We recommend a consultation for those seeking to explore alternatives for their employees not selected in the H-1B lottery.