Your H-1B Petition was Not Selected in the Lottery – What Now?

May 3, 2013

With news that the U.S. Citizenship and Immigration Services (USCIS) has already reached the 2014 cap for H-1B visas, a number of people whose employers filed H-1B petitions on their behalf will receive notification that their applications weren't selected in the lottery for further processing and review. If your H-1B petition isn't selected, what other options do you have?

You can re-enroll and continue with your F-1 visa. Depending on your curriculum, you may be entitled to curricular practical training that will allow you to work in the US while in a student status. If you do not intend to continue studying, you may be eligible to extend your employment authorization for 17 months. Students who obtained a degree in the fields of Science, Technology, Engineering and Math (STEM) are entitled to 17 additional months of Optional Practical Training. You should consult your International Student Advisor regarding this extension.

Find another sponsor who is exempt from the H-1B cap. Certain types of employers, such as an institution of higher education and a not-for-profit research group affiliated with a U.S. university, are exempt from the visa cap. These employers can file an H-1B petition for you regardless of the quota situation since they are not covered by the quota.

There are other visas that you could be eligible for. If you're at the top of your field, with outstanding achievements and educational accomplishments, you may be able to get an O-1 visa. This visa is similar to an H-1B visa but with the added requirement that the beneficiary is a person with outstanding abilities or credentials.

There are visas similar to an H-1B that are specific to a person’s citizenship. If you are a citizen of Canada or Mexico, you might be eligible for a Trade NAFTA (TN) visa. Citizens of countries like Singapore, and Chile, are eligible for H-1B1 visas and they have a separate quota from the general H-1B visa. Citizens of Australia are eligible for the E visa. This visa is also very similar to an H-1B visa.

You can apply directly for your green card. If you obtained a Master’s degree in the US or have its equivalent, you may have your employer/sponsor file a labor certification (PERM) application for you. It is possible to get a PERM and I-140 approval in less than a year. If you were born in countries other than China and India, it is possible for you to file for adjustment of status to US permanent resident (green card) immediately after receiving a PERM approval.

Some people who are engaged in investment and trade may be able to obtain E-1/E-2 status, if their sponsoring company meets the relevant criteria and if they are citizens of countries who have entered into an investment/trade treaty agreement with the US.

To determine what other visas you could be eligible for, you should consult with an expert immigration attorney who will thoroughly review your unique situation, lay out all of the options available to you, and chart a course of action that will increase your chances of continued work and residence in the U.S.