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What Options Do I Have If I Wasn’t Selected under the H-1B Cap?

by | Apr 20, 2020 | H-1B/H-4, Immigration

The initial H-1B selection has come and gone, and many registrants did not make the 85,000-person cap. Because of this, many employers and foreign nationals are looking for alternatives to the H-1B.

Many must wait until March next year for another chance at H-1B status.  However, here are some options to consider while waiting or as alternatives to the H-1B status.  

  1. STEM OPT extension  

For those who qualify, the STEM OPT extension is a great option that allows for a 24-month work authorization post-completion of optional practical training (OPT) for certain F-1 students who have a  science, technology, engineering, or mathematics (STEM) degree in a DHS designated STEM field. 

Qualifications include: valid period of OPT, employer must be enrolled in E-Verify, qualifying DHS STEM degree.  The filing must generally occur in the last 90 days of the student’s OPT period. 

2. CPT (Curricular Practical Training) – “Day 1 CPT” 

This option relates to certain university programs that allow F-1 students to start using CPT and work concurrently from the first of their program, typically in a hybrid format with a mix of online and in-person coursework. 

The requirements include: job must be related to the program of study; the work experience must be an integral part of the school’s established curriculum; the Designated Schools Official (DSO) must approve and authorize CPT in SEVIS; and the student must have a full course of studies, among others. 

This option must be evaluated and researched carefully by the prospective student.  Several institutions offering CPT have been found to be sham programs to attract foreigners looking for a way to be in the U.S. legally and work in the US.  

3. Concurrent employment with an H-1B Cap-Exempt employer 

H-1B visa workers can have concurrent employments.  In some situations, obtaining a petition to work for an H-1B cap-exempt employer (like an institution of higher education or affiliated nonprofit entity) and thereafter a petition to work for a cap-subject employer can provide an avenue for concurrent employment for those non-selected.  This option must be explored carefully as there are many additional requirements that must be fulfilled.  

 4. Marriage to a U.S. Citizen 

Some foreign workers are engaged to be married to a US citizen when they learn that they were not selected under the H-1B lottery.   Marrying a U.S. citizen might provide the immigration benefit desired such as work authorization, but this option and the timeline must be considered carefully.  The marriage should not occur for the sole purpose of obtaining an immigration benefit.   

5. Working Overseas 

Working for the petitioning employer at an overseas office could be considered while waiting or exploring other work opportunities.  Depending on the corporate structure, employment outside the US might create the possibility for an L-1 visa (see more about this option below).  

6. Spouse Visa Status 

If the foreign national is married, employment options via the spouse should be considered.  For example, certain spouses to L-1, E-1, 2 or 3 and H-1B visa holders can apply to obtain employment authorization or are authorized to work incident to their status.  More below.   

7. Returning to the Home Country  

This is an option that must be considered after exploring other options.  Those in F-1 status as foreign students typically have a 60-day grace period following the OPT expiration date to leave the U.S. 

Other options which require additional time, strategy, and requirements include:  

8. O-1 Visas for Individuals with Extraordinary Ability   

This is a good option for individuals who can show extraordinary ability in the sciences, arts, education, sports, or business, or distinguished ability in the arts or entertainment.   The evidence must show that the candidate is among the small percentage of people who have risen to the very top of their field. 

9. L Visas for Intra-company Transferees  

Employers can sponsor Executives and Managers and individuals with Specialized Knowledge who have worked for a foreign entity related to a US company for at least one year for an L visa.  

10. H-1B1 Visas for Citizens of Singapore and Chile  

Employers can sponsor Citizens of Singapore or Chile for an H-1B1 visa available under the US-Chile and US-Singapore Free Trade Agreements. 

11. E-3 Visas for Citizens of Australia  

Employers can sponsor Citizens of Australia for an E-3 visa. The requirements of the E-3 visa are similar to the ones for the H-1B visa.   

12. TN Visas for Canadian and Mexican Citizens  

Employers can sponsor Canadian and Mexican citizens for TN status under USMCA. TN status is limited to about 63 professional occupations listed under the agreement.   

13. H-4 Spouses of H-1B Visa Holders 

Certain H-4 are eligible to apply for a work permit if their H-1B spouse has an approved Form I-140, Immigrant Petition.  

14. E and L-1 visa holder spouses  

Certain spouses of E and L-1 workers in valid E-1, 2 or 3 or L-1 status are considered employment authorized incident to status and do not need to apply for employment authorization to work in the U.S. 

15. Green Cards under the PERM Track   

Employers can sponsor foreign workers for a green card via the PERM process – the first step of the green card process for many foreign nationals seeking permanent residence through their employment.  This process can take on average 2+ years and can only be considered as a very long-term work option.  

If you are looking for comprehensive guidance on alternatives to the H-1B, Giselle has published an entire book on the matter which is available on amazon: Beyond the H-1B: A Guide to Work Visa Options for Employers, Foreign Nationals, and Graduating Students.

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Updated April 12, 2024. Originally Published April 20, 2020.



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