What are your Options if Not Selected in H1B Visa Lottery?

H1B Visa is one of the most sought visas to work in the US by foreigners. Due to the tremendous demand, there has been lottery to select the required number of slots to fill the H1B cap that is allotted ever year as per US Congress.

As part of the H1B Registration Lottery Process, many apply for the H1B registration, but only few get selected in the H1B Lottery. Those who are unlucky might be wondering what are their options to stay or work in America. In this article, we will review all such options, depending on the applicant’s situation like living in the US on F1 visa, working on F1 OPT, or applying as H4 holder, etc.

As a background, if you are a first-time H1B applicant, you will need to go through the H1B Visa registration Lottery process and only if you are selected in the H1B lottery, then you would be eligible to file H1B petition with USCIS. In the below sections, we will describe what are your options, if you are not selected in the H1B Lottery.

F1 Visa and Working on OPT, which expires by end of the year or earlier – Options?

If you fall under STEM Degree Category and you have not used up your 24-month STEM OPT extension, you should go for the STEM OPT extension. Your employer should be USCIS E-Verified to avail this option. This will help you work on OPT and be in status in America. You can apply for the next year H1B quota, which typically opens up in April of next year. Registration process happens much before like in March of next year.

If you do NOT fall under STEM degree category, unfortunately, you are left with few options to stay in America.

• You can apply for another degree either MS or MBA, but you will NOT get second OPT for 1 year.  Not sure, if it will add value to your career or pursue your passion, it just makes you stay in America and apply for next year’s H1B quota.
• Alternatively, you can also apply for PhD, which is quite a commitment, where you will get another one year OPT.  You have to remember, PhD can take about 3 to 5 years depending on your university. Pursuing PhD for the sake for status is not the best idea, you need to passionate about research.
• You will have to leave the country after your OPT ends. Staying beyond your valid status in America can complicate your immigration history and you can end up in issues in future, if you would like to leave later and re-enter America.
• You can also apply for a cap-exempt H1B Visa as discussed in next section.

Apply for Cap Exempt H1B Visa

Cap Exempt H1B is something that you can leverage, if you apply for H1B using an organization that is H1B Cap Exempt. Below are some of the common types of cap exempt organizations

• Public Universities or Nonprofit Universities.
• Nonprofit research entities related to higher education institutions
• Nonprofit research organizations
• Government Research Entities

Studying on F1 Visa, Graduating Spring or Summer of the H1B Lottery year

If you can do some adjustments to your OPT start and end dates, you can stay in America and be eligible for the next H1B Visa fiscal year to apply for the H1B Lottery next year. USCIS provides an option called cap gap, if selected in H1B Lottery, that lets you work in America after your OPT expires and you have filed your H1B visa application for the upcoming fiscal year. 

Essentially what it means is that if you file for your H1B visa on April 1^st and your OPT was valid at the time you apply for the H1B Visa, you are good to work until the decision of your H1B petition. If your H1B is approved, you are fine to work until October 1^st and your H1B status kicks in after October 1^st. 

You will have to stop working after October 1^st, if you are still awaiting decision. Small catch is that your stay will be considered out of status, if your petition is rejected from April 1^st until your petitions was adjudicated.  So, the summary is that make sure you can push your OPT start date as late as you can by talking to DSO at your school, so that you can apply for next H1B Visa quota.

If you are graduating in Summer of the H1B lottery year, you should be fine to have start OPT in August and you will be fine with cap gap as well.

H4 to H1B visa COS, Not selected in Lottery

Unfortunately, there is a very limited option. You would go through the cap exempt H1B route and need to find a public university or education/ research institute that can file your H1B visa under cap exempt quota.

It can be very hard, but that’s the truth.  You may also enroll in MS degree program, do a COS to F1 visa and avail the option of CPT and OPT, it depends on your passion to study MS.  If you just want to keep yourself engaged and not interested in monetary returns,  you can always do volunteering.

If your spouse has green card process on-going and has Form I-140 approved, you can also apply for H4 EAD. This gives you much more flexibility to work.

Company Applied for H1B visa from Overseas, Not Selected

If your company is a global and have offices overseas and in America and they process L1 Visa, you may be eligible for L1A or L1B visa after completion of 1 year of work in your company. Again, it depends on the company you work for and their practices to do L1 visas, you would have to talk to them. 

This is probably the best option for you to work in America.  If your company is not a global and have only US presence, then your option is to apply during the next fiscal year season lottery.

Marry American Citizen to Stay in America?

Some may advice to Marry an American to stay in USA, because it is an option. But, it is NOT the right choice. You need to marry someone, if you fall in love with someone, not just because you want to stay in America. That’s wrong way to look at Life. You can always come back to America, if you have the skills and education, marrying someone just for the sake of staying in America, is wrong thing to do.

Did I miss anything ?  What are the best options ?  Share your thoughts, ideas ?

Did I miss anything ?  Any other thoughts to add ?