Not Selected in the H1B Lottery; A Few Viable Options

We received text messages from USCIS regarding some updates of our H-1B CAP cases.  Excited and hopeful, I logged in to our myUSCIS account only to find some non-selection notices for the pending H-1B registrations. This is not exactly surprising, as we've already predicted that there might not be a second drawing on account of the larger number of selections in the first drawing. Still, we feel the disappointment of not only our clients, but also thousands of other H-1B applicants and employers.  Today, USCIS made the formal announcement that the H-1B CAP for FY 2023 has been reached.  No 2nd or 3rd drawing.  

For the unselected foreign students and workers, they must now face the harsh reality of their future. The following are some alternatives that they may consider based on their background and qualifications:

STEM OPT

For some foreign students with a STEM degree, continue working with their STEM OPT employment authorization may be the best option. While waiting for the next year's H-1B lottery, they may continue working for their employers.

O-1 Visa
For individuals with a strong STEM background, the O-1 extraordinary ability visa may be an option. The O-1 visa requires substantial proof of one's qualifications and achievements. Please see our previous article for details of the O-1 visa.

Green Card through Labor Certification
Rather than relying only on H-1B, one may also consider applying for his green card directly, if there is an employer who is willing to sponsor. There is no requirement that one must be in H-1B status first before applying for their permanent resident status.  For applicants born in under-subscribed countries, their green cards could be approved relatively quickly. 

Green Card with NIW
Without sponsorship by a U.S. employer, a foreign worker may also file a self-petition for her green card with a national interest waiver (NIW).  The applicant must prove that her immigration will serve an important interest of the United States.  USCIS has encouraged qualified individuals with a strong STEM background to apply.  Please see our previous article for details of an NIW application. 

E-2 Visa
For entrepreneurs who are interested in starting up a small business in the U.S., the E-2 Treaty Investor visa may be the answer.  Their spouses and children may also live, work and study in the U.S. To apply for an E-2 visa, one's country of citizenship (not birth) must have a commerce treaty with the U.S.  Most European and Asian countries are eligible.  Please see our previous article for details. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)