Practice Pointer: Options for Individuals Not Selected in H-1B Quota

As we enter the 2023 Fiscal Year H-1B Quota season, we know many individuals will not be selected for the H-1B quote. However, if not selected, there are options to remain in the United States and retain work authorization. Given the sensitive and time-constrained nature of these scenarios, it’s critical to act quickly. Preparation is key to success. If your H-1B lottery file is complete, it’s a great time to think about your options and get started now. We can help.

Individuals who file for the H-1B Quota are either currently on an F-1 non-immigrant student visa, residing overseas, or on other non-immigrant status living in the U.S. The following options are available for individuals based on their situation when applying for the H-1B Quota.

Options for F-1 Visa holders

File for OPT and/or STEM-OPT;
Enroll in the next level of university study;

File for OPT (Optional Practical Training) or STEM OPT Extension

If you are currently an undergraduate or postgraduate student (F-1 visa) working towards completing a U.S. degree, you are eligible to participate in practical training in order to complete your course of study.

Pre-Completion OPT

Although limited, pre-completion OPT allows you to work while enrolled in school. You are only allowed part-time employment (20 hours a week) while school is in session. Meanwhile, full-time employment is permitted during breaks and once you have completed all required coursework needed for your degree. Pre-completion OPT is granted for 12 months and you must maintain full-time enrollment in a SEVP certified school.

Post-Completion OPT

Unlike pre-completion OPT, post-completion OPT allows you to work for 12 months once you have completed your academic coursework. It is important to track the time worked on pre-completion OPT as it is deducted from the time you can work on post-completion OPT. Luckily, the OPT clock resets for each new degree you enroll in and complete.

STEM OPT (Science, Technology, Engineering, and Mathematics)

After exhausting pre- and post-completion OPT, you may qualify for a STEM OPT extension if enrolled in a qualifying degree. This allows you to continue your employment for 24 months, which should be sufficient for you to re-apply in next year’s H-1B Quota while maintaining your work authorization.

Enroll in the next level of university study

If you have already completed the 24-month period of STEM OPT, you may be eligible to apply for Curricular Practical Training (CPT) if you apply for a new university program that is at a higher education level than your previous degree. For example, you are completing your STEM OPT for your Master’s degree and decide to pursue a Doctorate. In this case, you would be eligible to file for CPT under the new program.

Options for Individuals in the U.S. on F-1 and other Non-Immigrant Visas

File change of status to H4 or L2 (if applicable) and EAD concurrently;
File for work with a CAP-EXEMPT Employer

File change of status to a dependent visa H4 and L2 (if applicable) and EAD concurrently

Many F-1 visa holders and other non-immigrant visa holders residing in the U.S. have spouses that are already working in the U.S. on an H-1B or on L1 VISA. If applicable to you, consider filing a change of status to H4 (Dependent of H-1B VISA holder) or L2 (Dependent of L1 Visa holder) and concurrently file an EAD for work authorization. For an H4 visa holder to apply for EAD, the H1B spouse must have an approved I-140. An L2 visa holder can apply for EAD without employer sponsorship. You are still eligible to file in the H-1B quota while in H4 or L2 status, so this is ideal if you are worried about gaps in your employment authorization.

File for work with a CAP-EXEMPT Employer

If you are not selected in the H-1B quota, but desire to work in the U.S., the other option is to consider seeking employment with a cap-exempt employer. Cap-Exempt employers are able to submit H-1B applications to USCIS at any time during the year, without having to submit in the yearly H-1B quota. Cap-Exempt employers include:

Institutions of Higher Education
Non-profit Organizations Affiliated with an Institution of Higher Education
Non-profit Research Organization
Government Research Organization

Ensuring an employer is Cap-Exempt can be challenging. The qualifications are specific. If you have questions, we can help.

Options for Individuals Residing Overseas

Apply for a different VISA for which you qualify
File for work with a CAP-EXEMPT Employer

Apply for a different VISA for which you qualify

USCIS has many different employment-based VISAs available for which you may qualify if you are not selected in the H-1B quota. L-1B classifications allow a U.S. employer to transfer one of their specialized knowledge employees, who are currently based in their affiliated foreign offices, to a U.S.-based company. Canadian and Mexican citizens can opt to enter the U.S. on a TN work visa, without having to go through the H-1B quota process. Australian nationals can enter the U.S. on an E-3 visa and forego applying through the H-1B quota. Please make an appointment with our office to get more information on the type of visa you can qualify for.

File for work with a CAP-EXEMPT Employer

Institutions of Higher Education
Non-profit Organizations Affiliated with an Institution of Higher Education
Non-profit Research Organization
Government Research Organization

The H-1B quota lottery system is limited with demand far outpacing supply. It’s critical to understand options and take full advantage of them, where eligibility exists. Working with experienced immigration attorneys is a key step to maximizing your options. If you have questions about the H-1B lottery process or your options, contact us at ILBSG. Our firm has extensive experience in all areas of immigration. We work closely with our clients to maximize their odds of success. We work with you, in your specific situation, to ensure you get the right advice. Contact us today.