Top Three Options for Individual Not Selected in H-1B Cap Lottery

The USCIS announced this morning that it has received sufficient H-1B Petitions for both the “regular” and “Master’s Degree” Caps and that it is no longer accepting Cap-Subject Petitions. The lottery is expected to begin next week with notifications beginning in mid-to late-May.

H-1B Alternatives

For those employees that are not selected in the H-1B Cap Lottery, what are the top three options Employers have to keep these Employees “on-board”?

1. The Foreign National Employee could enroll in a Master Degree or other degree program to maintain their F-1 status and continue in employment, albeit part-time, with the Employer under F-1 Curricular Practical Training;
2. The Foreign National Employee could depart the US for a 90-day period upon completion of the OPT status, and then apply for a J-1 Trainee status to continue in their entry-level employment/training;
3. The Employer could explore other potential nonimmigrant visa options:
   1. O-1 if the Foreign National Employee has an advanced degree, extensive publications/citations, awards in their field, and/or other evidence that they are one of the leading individuals in their field of work;
   2. TN professional if the Foreign National Employee is a citizen of Canada or Mexico;
   3. E-3 professional if the Foreign National Employee is a citizen of Australia
   4. Other potential categories based on the individual’s background and position.

If you have questions about your applicants or even a new hire that you were considering for an H-1B but now need to seek alternatives, we are happy to help you work through the challenge. Send us an email or give us a call!