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What To Do If Your Case Is Not Selected In The H-1B Visa Lottery

Applicants subject to the cap of the H-1B program presented their cases to USCIS during the first week of April. Every year only 85,000 H-1B visas are made available by Congressional mandate (65,000 for applicants with a bachelor’s degree and 20,000 for applicants with advanced US degrees). Applicants should know if their cases were selected in the lottery by early June. If a case gets selected in the lottery, USCIS will review the case and determine if all eligibility requirements for the H-1B visa are met. When a case is not selected in the lottery, the applicant may want to consider these other options:

  1. If you still have enough time left in your Optional Practical Training (OPT) work authorization, you may continue to work and try again for next year’s lottery.

  2. If your OPT ended, you cannot work, but you may enroll in another study program. Note that you only get 12 months of OPT work authorization per degree level. If you just completed a bachelor’s degree, consider enrolling in a master’s degree program. While studying, you may apply for Curricular Practical Training (CPT), which authorizes employment only if is integral to your major and part of your program of study (internships, for example).

  3. H visa (cap-exempt): The following employers are not subject to the H-1B cap, which means they may apply for an H visa without waiting for the lottery:

o Institutions of higher education

o Nonprofit entities related to or affiliated with an institution of higher education

o Nonprofit research organizations

o Governmental research organizations

  1. Labor Certification (PERM): If you have a willing employer, you may start this process leading to a permanent residence. It takes approximately two years, unless you were born in India or China. It also involves testing the job market in the US. If there are no able, qualified, and willing US workers for a specific position, then your employer may petition for you. Note that you may need to wait outside of the US while this process is pending unless you have another valid status.

  2. TN visa: Available for citizens of Canada and Mexico in certain professions. Allows you to work temporarily for a specific employer in the US.

  3. L-1 visa: Foreign entities may transfer certain employees to their US affiliates or send them to open a new office in the US. The employees must be executive, managerial, or have specialized knowledge and must have worked abroad in such occupation for one year.

  4. O-1 visa: Available to people with extraordinary ability in the sciences, arts, education, business, or athletics who have been nationally or internationally recognized.

  5. E-2/E-1 visas: Possible for certain investors or employees of specific countries with a treaty with the US.


If you have questions about your H-1B visa application or other immigration programs, don’t hesitate to ask one of our visa attorneys. They can help you understand the process and determine if there are other options that will allow you to live and work legally within the United States. The Atlanta immigration attorneys at Antonini & Cohen have many years of experience and are here to answer your questions. Don’t hesitate to contact us at 404-850-9394 so that we can help you.

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