H-1B Visa Lottery: What to do if you were not chosen?

USCIS should have notified you if you have won the H-1B lottery process. If you haven’t received a notice yet, there are steps to take to ensure you can remain in the United States and be ready to enter the lottery process once more next year. What can you do if your H-1B Visa petition was not accepted as one of the 80,000 H-1B visa petitions now up for review? We have compiled a list of alternative visa categories you may be eligible for.

First and foremost, if you are on an F-1 or J-1 visa, you can continue working until your work authorization expires. If you are currently on an F-1, contact your designated school official to inquire about an extension of your work authorization. Moreover, if you are studying in a STEM Field, you may be eligible to extend your Optional Practical Training (OPT) for a maximum period of twenty-four months. If you are on a J-1 visa, contact your employer to inquire about an extension of your trainee program. If you are able to extend your lawful status in the United States, you may then re-apply for the H-1B visa next year while in the United States. You may also apply for the H-1B visa from abroad, should you have to leave if no extension is possible.

In addition, the list below provides information on visas which you may qualify for:

• J-1 – The J-1 visa is given to individuals who participate in an exchange visitor program. There are several occupations which are covered under the J-1 visa program. The J-1 program is typically for trainee or internship purposes. There is also a two-year residence requirement for certain J-1 occupations, meaning that certain J-1 visa holders are required to reside in their home country for a period of two years upon completion of their J-1 program.
• H-3 – Another alternative to the H-1B could be the H-3 visa category. The H-3 visa is given to nonimmigrants who are coming to the United States as trainees in a field that is not available in their home country. This trainee category does not apply to those in graduate medical education or training. Moreover, the H-3 visa is also awarded to “special education exchange visitors” who will participate in a special education exchange visitor training program.
• E-2 – The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. “Substantial investment,” in relation to the E-2 classification, is an investment of capital relative to the total cost of establishing a new enterprise or purchasing an established one.
• E-3 – The E-3 visa is for Australian nationals seeking to be employed in certain professional specialty positions. Almost identical to the H-1B visa category, the E-3 visa is only given to professional workers who are working in a professional specialty occupation. As such, it must be proven that the proposed position in the United States requires at minimum a bachelor’s degree or higher, and that the foreign national possesses the credentials to assume the position.
• TN – As part of the North American Free Trade Agreement (NAFTA), the TN visa category was created. The TN visa is offered to certain Canadian and Mexican professional workers. Similar to the H-1B, the TN visa holder must work in a professional specialty capacity, with certain stipulations depending on what job is being sought after.
• L-1B­ – The L-1B visa category allows employers to transfer employees from a foreign office to the United States. However, the L-1B visa is for employees who were performing the duties and functions of a position which requires specialized knowledge, and who will necessitate such specialized knowledge to perform their duties in the USA. Please note that “specialized knowledge” differs from “specialty occupation,” in that “specialized knowledge” is defined as knowledge that is directly related to the employing organization’s functions, interests, processes, and guidelines, rather than the attainment of a bachelor’s degree or higher. Although the bachelor’s degree would be positive for purposes of the L-1B petition, it must be proven that the specialized knowledge goes beyond the attainment of a bachelor’s degree and into a specialized or unique knowledge of the organization which would be difficult to replace.
• L-1A – Under the same umbrella as the L-1B visa classification, the L-1A visa category requires an established relationship between a foreign entity and the U.S. employer. However, rather than requiring “specialized knowledge,” the L-1A classification is provided to individuals who have been employed abroad by the foreign entity in a managerial or executive position for at least one continuous year (in the past three years), and who will be employed in a managerial or executive position upon being transferred to the U.S.
• O-1 – If you have reached a level of extraordinary achievement and recognition in the field, you may qualify for the O-1 visa. From business executives, to medical professionals, to creative artists, the O-1 visa is for those who have achieved a level of distinction in the field for extraordinary ability in their respective field.

For more information on any of these categories, please contact The Margolis Law Firm’s Attorneys Jeff Margolis, Scott Goldsmith, and or Caitlin Mullan or call our office at (212) 490-0900.