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Not selected in the H-1B lottery? What happens next?

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 (or 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

While I have written about Cap-exempt H-1B visas in a previous article (Desh Videsh October 2022), I wanted to again bring up this possibility for certain candidates.  Cap-exempt H-1B visas are H-1B visas that are not subject to the annual cap and can be filed at any time.   

  1. Cap-Exempt H-1B employers are usually colleges/universities or recognized non-profit organizations
  2. You can either get hired and sponsored directly by a Cap-Exempt H-1B employer OR
  3. You can work concurrently for both a Cap-Exempt H-1B employer and your full time  U.S. Employer.   
  4. 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 have demonstrated extraordinary achievement in the entertainment industry, nationally or internationally. 

  1. 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 requirement, and you can also file one at any time.  
  2. 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. For more information on O-1 visas please see my article in Desh Videsh’s June 2022 issue.  

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-1B 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-1 lottery selection.  Additionally, a 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 US. 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-1B 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 of 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 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.

(For more information on CAP exempt H-1B, refer to: https://www.deshvidesh.com/cap-exempt-h-1b-visas-what-to-do-if-your-current-or-prospective-employee-was-not-selected-in-the-h-1b-lottery/)

(For more information on O-1 Visa, refer to: https://www.deshvidesh.com/are-you-extraordinary-o-1-visas-for-persons-of-extraordinary-ability/)

This article does not constitute a solicitation or provision of legal advice and does not establish an attorney-client relationship.  The answers provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter on time.

About Author:

Attorney Seth FinbergU.S. Immigration Attorney Seth Finberg is a 2005 graduate of the University of Georgia School of Law. Seth is a member of the Georgia Bar, the American Immigration Lawyers Association (AILA), and serves on the Business and Investment Committee for the South Florida chapter of AILA. Mr. Finberg is the owner and founder of South Florida based Finberg Firm PLLC and he represents clients nationwide and internationally in business, employment, and investment immigration. He can be reached by phone at (954)-843-3568 / (954) 249-6603 or by email at seth@finbergfirm.com or www.finbergfirm.com.

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