My H-1B Visa Petition Wasn't Selected in the Lottery. Now What??

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By Keith A. Pabian, Esq.

As we approach the end of June, immigration lawyers know what to expect in the mail – H-1B visa petitions that were not selected in the random lottery held in April. When we notify our clients about the unselected petitions, the first question is always the same – how can we keep employing our foreign national employee?

Let’s start with the basics - what is an H-1B visa? An H-1B visa is the most common type of work visa in the USA. It is an employer-sponsored visa that is available to a foreign national that holds at least a Bachelor’s degree or the foreign equivalent and will be working for a U.S. employer in a job that requires, at a minimum, a Bachelor’s degree. Because the H-1B visa is the most popular type of work visa, the government placed a numerical limit on how many of these types of visas it issues annually in an effort to protect U.S. jobs. If that number is exceeded, then every April 1^st, the U.S. immigration services holds a random lottery to select which petitions are reviewed by immigration officers.

This lottery system leads to hundreds of thousands of H-1B visa petitions being unselected in the random lottery and forcing employers to wonder what alternative visa options are available. So, let’s discuss these options...

The first, and in most cases only, viable option is to look to see if the employee qualifies for an extension of his/her F-1 Optional Practical Training (OPT) status. Many of the people who are sponsored for H-1B visa status and who are subject to the random lottery have been studying in the USA at colleges, universities, and in graduate programs. Following their studies, many of these students are eligible to work for a U.S. employer for one year without visa sponsorship through the F-1 OPT program. Thanks to a new government policy, some F-1 visa holders are eligible to work with OPT for a total of 36 months. In order to qualify, these individuals must hold United States-based degrees in science, technology, engineering and math (STEM), among other requirements. Therefore, if a company’s employee has a post-graduate degree in a STEM field, s/he may qualify for an extension of his/her OPT status to allow for continued employment with the employer. In this scenario, the employer would likely file a new H-1B visa cap petition on this person’s behalf next year.

The second visa option that is worth considering is an O-1 visa. O-1 visas are available to those individuals who have reached the top of their field while receiving recognition or accolades. Ph.D. graduates are sometimes good candidates for O-1 visas as they often have had to do certain activities incidental to their degree, such as publishing and teaching, that the government looks to when considering the strength of an O-1 visa petition. In practice, O-1 visas can be hard to qualify for but are always worth thinking about when an H-1B visa petition is not selected in the random government lottery.

The final visa options to consider are very fact specific. Has the employee worked for an affiliated entity to your company’s abroad for at least 12 months (L-1 visa)? Is your employee from a certain country that has special visa options for citizens of those countries thanks to treaties (ex., Canada, Mexico, Australia, Chile, Singapore)?

In summary, there are options to consider when an H-1B visa petition is not selected in the random government lottery. Because these options are limited and very fact specific, it is worth having a conversation with your immigration counsel when you learn the results of your H-1B visa cap petitions.

Keith A. Pabian is an immigration attorney at Pabian Law, LLC, an immigration law firm that represents companies and organizations in New England and across the United States. He can be reached at keith@pabianlaw.com or (617) 939-9444. This article was prepared for educational purposes only.

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