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My H-1B Wasn’t Selected in the Lottery – Do I Have Any Options?

Around this time of year, many foreign workers and U.S. companies are faced with a dilemma:  the worker’s H-1B petition was not selected in the lottery.  Since there are only 85,000 H-1Bs awarded each year, and USCIS received more than 236,000 applications this year, it comes as no surprise that thousands of foreign workers and their employers are in this situation.flag

If your H-1B wasn’t selected in the lottery, you may have another option to stay and work in the United States.  Read on to learn more about these options and contact our office today to discuss your case in depth with an experienced immigration attorney.

1.  A different worker visa may be available.

There are many different types of employment visas.  The H-1B happens to be the most popular, but there are hundreds of thousands of foreign workers who are in the U.S. with another visa, such as the O-1 or the L-1.  The O-1 requires the foreign national to be particularly experienced and accomplished in his or her field.  Specifically, the worker’s U.S. employer must show the worker has extraordinary ability.

The L-1 is only suitable for workers who have previously been employed for a multinational corporation abroad.  Additionally, that employment must have been in a managerial or executive role, or the worker must have utilized specialized knowledge in the course of performing his or her job duties.

2.  The worker can enroll in a U.S. university.

Many H-1B hopefuls do not meet the requirements for the O-1 or the L-1 visas.  In these cases, many people decide to enroll in a U.S. university and maintain F-1 student status in order to obtain a U.S. degree.  While this may sound easy, it should be kept in mind that there are more and more unaccredited and fraudulent universities popping up around the country.  Before enrolling in a program and making any payments, foreign nationals are urged to thoroughly research and physically visit the university.

3.  The green card process may be a possibility.

There is no requirement that a foreign national be in H-1B status in order for the foreign national’s employer to begin the green card process.  If the worker and the employer intend to maintain the employment relationship indefinitely, it may be a good idea to bypass the H-1B and go directly to the green card process.  Most employers complete the labor certification application in order to sponsor their workers for green cards.  Also referred to as PERM, the labor certification can take many months to complete.  The good news is that there is no annual limit on the number of PERMs that can be filed and approved.

4.  Explore investment-based immigration options.

There are both nonimmigrant (temporary) and immigrant (permanent) business visa options for foreign nationals.  The nonimmigrant E visa is for foreign investors.  However, only investors in countries that have a trade treaty with the U.S. can qualify for this visa.

Conversely, the EB-5 green card is available to any foreign national as long as the foreign national invests $500,000 or $1 million into a U.S. commercial enterprise.

The Rant

Although these are all possible options if your H-1B petition was not selected during the 2016 lottery, it is best to consult with an immigration attorney who is experienced in employment-based immigration to discuss your options. Some of the above mentioned options are well-suited for certain candidates, but not all. Our firm has over 50 years of combined employment-based immigration experience, and our attorneys are highly experienced in these situations. The process in figuring out what to do following an H-1B petition not being selected during the lottery is extremely complex. For example, obtaining a green card through a PERM application can take years depending on the priority date of your country of citizenship; it’s not just a simple route to obtaining legal permanent status if your H-1B petition was not selected. The ability to maintain legal status throughout various immigration processes can be confusing and overwhelming, especially considering the list of variables that make a candidate eligible for varying processes. If you would like further information regarding your options, please contact our office and we would be happy to schedule an appointment to discuss your options with you.

More Blog Posts:

The Government’s War on H-1Bs, ImmigRantings, October 11, 2012

Obama Signs Immigration Executive Order, ImmigRantings, June 15, 2012

Problems with the H-1B visa: From Work Horse to Show Pony, ImmigRantings, February 13, 2012