Alternative Options for Those Not Selected in the H-1B Lottery
This article outlines possible options after not being selected in the H-1B lottery, including transferring to another F-1 program and applying for CPT, cap-exempt employers, other nonimmigrant statuses such as L-1, O-1, or J-1, remote work from abroad, and specific visa categories for citizens of Chile, Singapore, Australia, Canada, and Mexico, while noting relevant risks and tax considerations.
For individuals not selected in the H1B cap lottery, this article discusses several possible options, such as transferring to another F-1 study program, seeking employment with an H1B cap-exempt employer, or determining whether other nonimmigrant options may apply. Citizens of certain countries, such as Chile, Singapore, Australia, Canada, and Mexico, also have specific options.
Each fiscal year generally has approximately 85,000 cap-subject H1B slots, including 65,000 regular H1B slots and 20,000 H1B slots for graduates with a master's degree or higher from U.S. nonprofit universities. Due to high H1B demand, an H1B lottery is held each year for these 85,000 slots. If USCIS does not select your registration, eligible individuals may still have options to continue living and working in the United States.
Transferring to a Different Study Program
Full-time students not selected in the H1B lottery may consider transferring to another study program if they are nearing the end of their F-1 Optional Practical Training (OPT) or the two-year STEM OPT extension available to eligible science, technology, engineering, and mathematics students. This option sometimes allows individuals to obtain employment authorization based on Curricular Practical Training (CPT). Generally, F-1 students should not work during their first academic year. However, because the student has already completed an academic program in the United States before transferring, this restriction does not apply. Therefore, if all other requirements are met—most importantly, that the CPT is an integral part of the established curriculum—an F-1 student in this situation may be eligible for immediate CPT authorization, known as Day-1 CPT.
Note: The primary purpose of an F-1 visa is to study, and Day-1 CPT may increase the risk of receiving a Request for Evidence (RFE) in a future H-1B application. In addition, some schools can issue I-20s but cannot issue CPT, and some schools exist merely to profit from enrolling international students and lack the relevant qualifications altogether; exercise careful judgment when choosing.
Employment Opportunities with H1B Cap-Exempt Employers
The annual H1B quota or cap does not apply to certain eligible employers, which are not subject to the annual H1B limit. Employers exempt from the H1B cap include higher education institutions or related or affiliated nonprofit entities, nonprofit research organizations, and government research organizations. Working for a cap-exempt employer may offer an alternative option for foreign nationals who were not selected in the H1B lottery.
If a foreign national working in H1B status for a cap-exempt employer later decides to work for a cap-subject employer, the foreign national generally will need to participate in the H1B lottery in the future. There are limited exceptions for individuals working at a cap-exempt employer's work location or those concurrently working in H1B status for both cap-subject and cap-exempt employers. Those details are beyond the scope of this overview.
Other Nonimmigrant Options
Individuals who have worked abroad for a qualifying organization for at least one year may be eligible to enter the United States in L1A or L1B status. Individuals with extraordinary ability may be eligible to apply for O-1 status or J-1 status. It is prudent to conduct research or consult an immigration attorney to understand eligibility for other nonimmigrant options.
Working Remotely from Abroad
Under certain circumstances, if a foreign national employee cannot continue working in the United States, they may still be able to work remotely for a U.S. employer from abroad. Remote work is often a viable option for F-1 students who have exhausted OPT and did not win the H1B lottery. It is important to note that U.S. immigration law does not apply to foreign nationals working in their home country, but interested individuals are advised to consult an international tax attorney qualified in the jurisdiction of employment, as tax implications may need to be considered before starting remote work. Additionally, some high-security jobs may require the person to be physically present in the United States.
Countries with Qualifying Treaties with the United States
Some additional nonimmigrant categories may be available to citizens or nationals of certain countries. For example, nationals of Chile or Singapore may be eligible for H1B1 status, with annual quotas of 1,400 and 5,400 respectively. Unlike the H1B visa, the H1B1 visa does not have dual intent, and each period of stay is two years rather than three.
There are other employment visa categories for foreign nationals of certain countries, including the E-3 visa for Australian nationals and the TN visa for Canadian and Mexican nationals.
In addition, there are E-1 treaty trader and E-2 treaty investor visas for foreign nationals of certain countries that have qualifying treaties with the United States.
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While many foreign nationals rely on H1B status to live and work temporarily in the United States, other options may be considered if the H1B route is unavailable. These options may allow foreign nationals to continue working for a U.S. employer or to continue that employment abroad. When determining feasible options for individuals who did not win the H1B lottery, it is important to consider each person's unique circumstances.
