I Wasn’t Selected in the H-1B Lottery: Now What?

U.S. Citizenship and Immigration Services (USCIS) announced last week it had completed the lottery to select applications for the 65,000 regular cap and 20,000 more U.S. masters cap H-1B visas for the next fiscal year. From the start of the filing period on April 1 through April 10, 2014, approximately 172,000 petitions had been filed. Employers will either receive a receipt notice indicating they were selected, or their complete filing back in the mail. Due to the extreme shortage of visas allocated for this high demand classification, there will be many highly educated and skilled workers left wondering . . . now what?

If you are among those fifty percent of workers rejected solely due to the lack of visa availability, this may help you work through the next steps:

Check your status. It’s important for you to know what your current status is to ensure, if in the United States, you don’t overstay or fall out of status. For example, if you were counting on the automatic extension of your Optional Practical Training or F-1 student status known as “cap gap,” you will not receive that benefit if your application was not selected. Instead, you will have a grace period to remain in the U.S. for only sixty days.

Confirm your H-1B is cap-subject. It may be worth confirming your application is actually subject to the cap—the limit on the number of visas for the fiscal year. For example, employment at universities or affiliated or related organizations and at non-profit governmental research institutions is cap-exempt. Also, if you are already employed at one cap-exempt organization, you may be able to work at cap-subject employer concurrently with a second petition.

(Re)consider other options. There are many nonimmigrant (temporary) and immigrant (resulting in lawful permanent residency) categories that may apply to you, or could with some ingenuity or long-term planning. This blog will touch upon a few, and will be followed with a second part and more options.

• Optional Practical Training (OPT): If you recently graduated from a U.S. university and you plan to work in your field of study, you should make sure you’ve taken advantage of any Optional Practical Training available. It is generally available for an initial period of 12 months if you did not engage in pre-completion OPT. Foreign nationals with degrees in the STEM (science, technology, engineering and mathematics) fields can request an extension of 17 months.

• E-1 treaty trader visa: The E-1 visa is for foreign national who are coming to the U.S. to develop and direct a business that engages in substantial trade in goods or services, if their country has a treaty of commerce and navigation with the United States and all other requirements are satisfied. Executive, supervisory and specialized employees of E-1 businesses are also eligible.

• E-2 investor visa: The E-2 visa is for foreign nationals who make a substantial investment in an enterprise in the United States, and who seek to enter or remain in the U.S. solely to develop and direct the enterprise. The foreign national must have at least a 50% ownership or possess operational control over the enterprise. Certain employees of a qualifying enterprise in executive or supervisory positions or with special qualifications may also be eligible. This classification, like the E-1, is available to foreign nationals of countries with treaties of commerce and navigation with the United States. Notably, this is not the same as the EB-5 investor visa that requires a minimum of a $500,000 or $1 million investment, and results in lawful permanent residence. Instead, the E-2 requires a “substantial” investment, taking into consideration factors such as the amount and the nature of the business. This is another category with potential for aspiring business owners