Now that the FY-2023 H1B Lottery has ended, and if you are one of the unlucky candidates who was not selected in this year’s lottery, what other options do you have for staying in the US?

Posted by Nishu Sharma | Aug 22, 2022 | 0 Comments

On August 23, 2022, USCIS announced that it had received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master's cap, for fiscal year (FY) 2023. Also, that USCIS has completed sending non-selection notifications to registrants' online accounts.

So now that the FY 2023 H1B season is over, and if you were not selected in this year's lottery, what other options do you have? Below we briefly discuss your other options.

1. F-1 OPT/STEM OPT/CPT: If you have just graduated from your course, consider applying for Optional practical training (OPT) or STEM OPT if your OPT is coming to an end. In OPT, the training should relate directly to the student's major area of study. A student does not have to secure training before the DSO can recommend OPT. OPT is Authorized by the US Citizenship and Immigration Service (USCIS), and the student is issued an Employment Authorization Document (EAD). OPT allows the student to work for any employer, as long as the training relates to the student's major course of study. OPT can occur before or after the student's program end date. Students are eligible for an additional 12 months of OPT authorization when they change to a higher educational level or an additional 24 months of STEM OPT authorization when enrolled in the Science, Technology, Engineering, or Mathematics course. 

If your STEM OPT is also ending, you can try enrolling in a different course or subject, which allows you to enroll in Curricular Practical Training (CPT). CPT will enable you to work for one specific employer for a particular period. The training under CPT relates directly to the student's major area of study, and training is an integral part of the school's established curriculum. A student must secure the training opportunity before CPT can be authorized, and CPT must be authorized before the student can begin work. A student can have more than one CPT authorization at the same time. Also, one year of full-time CPT eliminates a student's eligibility for OPT.

2. H1B CAP Exempt Employers: You can try seeking employment with CAP exempt employers like universities and related nonprofit entities, nonprofit research organizations, and government research organizations. These employers can submit an H-1B application to the USCIS anytime during the year without concern for the fiscal year limit/CAP. However, a person who works for an H-1B cap-exempt employer who changes jobs to an employer that is not exempt may become subject to the H-1B cap. 

3. H1B1 Non-Immigrant Visa: The H-1B1 program provides for the temporary employment of non-immigrant aliens in specialty occupations from Chile and Singapore, limited to 1,400 nationals of Chile and 5,400 nationals of Singapore. The H-1B1 program is governed by many of the rules that apply to the H-1B program. The period of employment is one year. Extensions may be obtained twice but only in one-year increments.

4. L1 Non-Immigrant Visa: L-1A and L-1B visas are available for temporary intracompany transferees who work in managerial positions or have specialized knowledge. L-1A and L-1B visas may be issued when an employer files a petition to obtain authorization for qualified employees to be allowed to work and live in the United States.

The L-1A visa is for intracompany transferees who work in managerial or executive positions in a company that is located outside the United States. The L1A can be renewed for up to a maximum of 7 years.

The L-1B visa is for intracompany transferees who work in positions requiring specialized knowledge. The L1B can be renewed for up to a maximum of 5 years.

Foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office must show:

  • They have a physical location for the new office;
  • The employee has been employed as an executive or manager for one continuous year in the three years before filing the petition; and
  • The new office will support an executive or managerial position within one year of the approval of the petition.

5. O1 Non-Immigrant Visa: The O-1 non-immigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. To qualify for an O-1 visa, you must demonstrate extraordinary ability by sustained national or international acclaim or a record of extraordinary achievement in the motion picture and television industry and must be coming temporarily to the United States to continue work in the area of extraordinary ability. Extraordinary ability in the fields of science, education, business, or athletics means a level of expertise indicating that you are one of the small percentage who has risen to the very top of the field.

6. P1A and P1B Non-Immigrant Visa: The P-1A classification applies to you if you are coming temporarily to the United States solely for the purpose of performing at a specific athletic competition as:

  • An individual athlete at an internationally recognized level of performance;
  • Part of a group or team at an internationally recognized level of performance;
  • A professional athlete; or
  • An athlete or coach, as part of a team or franchise that is located in the United States and a member of a foreign league or association.

The P-1A classification also applies to professional or amateur athletes coming temporarily to the United States solely to perform in a specific theatrical ice-skating production or tour, individually or as part of a group.

The P-1B classification applies to you if you are coming to the United States temporarily to perform as a member of an entertainment group that has been established for a minimum of one year and recognized internationally as outstanding in the discipline for a sustained and substantial period of time.

7. J1 Non-Immigrant Visa: The J-1 classification (exchange visitors) is authorized for those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.

In carrying out the responsibilities of the Exchange Visitor Program, the Department of State designates public and private entities to act as exchange sponsors. J-1 non-immigrants are therefore sponsored by an exchange program designated by the US Department of State. These programs are designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts, and science.

Examples of exchange visitors include, but are not limited to:

  • Professors or scholars
  • Research assistants
  • Students
  • Trainees
  • Teachers
  • Specialists
  • Au Pairs
  • Camp counselors

Please note that some exchange visitors with J-1 visas are subject to a two-year home-country physical presence requirement. It requires you to return home for at least two years after your exchange visitor program. This requirement is part of US law in the Immigration and Nationality Act, Section 212(e). You must apply for a waiver if you cannot return home for two years. The Department of Homeland Security must approve your waiver before changing your status in the United States or receiving a visa in certain categories.

8. TN Non-Immigrant Visa: The TN non-immigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. A TN visa is valid for up to three years and can be renewed indefinitely.

Among the types of professionals who are eligible to seek admission as TN non-immigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers.

You may be eligible for TN non-immigrant status, if:

  • You are a citizen of Canada or Mexico;
  • Your profession qualifies under regulations;
  • The position in the United States requires a NAFTA professional;
  • You have a prearranged full-time or part-time job with a US employer (but not self-employment - see documentation required below); and
  • You have the qualifications to practice in the profession in question.

9. E-3 Non-Immigrant Visa: The E-3 classification applies only to nationals of Australia. You must be coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. The initial period of stay on an E3 visa is 2 years and can be extended in two-year increments for an unlimited duration.

10. E-1/E-2 Non-Immigrant Visa: The treaty traders and investors who come to the United States under a treaty of commerce and navigation between the United States and the country of which they are a citizen or national.

Treaty traders (E-1) conduct substantial trade in goods, including but not limited to services and technology, mainly between the United States and their country of origin, of which they are citizens or nationals. To qualify for E-1 classification, you must:

  • Be a national of a country the United States maintains a treaty of commerce and navigation with;
  • Carry on substantial trade; and
  • Carry on principal trade between the United States and the treaty country which qualified you for E-1 classification.

Substantial trade generally refers to the continuous flow of sizable international trade items involving numerous transactions over time.

Treaty investors (E-2) invest a substantial amount of money and direct the operations of an enterprise they have invested in or are actively investing in. To qualify for E-2 classification, you must:

  • Be a national of a country the United States maintains a treaty of commerce and navigation with;
  • Have invested, or are actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and
  • Be seeking to enter the United States solely to develop and direct the investment enterprise.

To qualify for E-1 or E-2 classification as an employee of a treaty trade or treaty investor, you must:

  • Be the same nationality as the main alien employer (who must have the nationality of the treaty country);
  • Meet the definition of "employee" under relevant law; and
  • Be either engaging in duties of an executive or supervisory position or, if employed in a lesser capacity, have special qualifications.

11. Obtain an Employment-Based Green Card: Individuals born in countries other than India or China should consider applying for an employment-based green card through the PERM process or EB-2 NIW and can avoid applying for an H1B visa entirely. The priority date for the individuals born in countries other than India and China is current; therefore, as soon as the I-140 is approved for them, they can apply for I-485 and can obtain I-485-based employment authorization to continue to stay and work in the US while USCIS adjudicates the I-485 application.

We regularly update our blog section to acquaint the community with to latest changes in Immigration policies. Please note the information in this blog is for informational purposes only and is not intended to be nor should it be construed as legal advice. We can promptly and efficiently represent clients located anywhere in the US or abroad on US Immigration Policies. If you seek further clarification, don't hesitate to contact SanSha Law Office at [email protected] or call us at 469-777-6161.

About the Author

Nishu Sharma

Ms Nishu Sharma is the founder and Managing Attorney of SanSha Law Offices PLLC. It was founded on the principle and commitment to serve the people with the best service that we can provide. The firm has served clients from Texas and other states of the US. She has handled all kinds of complex im...

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