Alternatives to the H-1B Lottery

Every year, the United States Citizenship and Immigration Services (USCIS) has a lottery for H-1B visas. These nonimmigrant visas are available to foreign workers in highly skilled positions in specialized occupations. Typically, many more people are applying for the lottery than there are open slots. Those not chosen must wait for the next lottery, or they may try to seek another type of visa. There are several commonly used nonimmigrant visa alternatives to the H-1B lottery:

Visa Based on Citizenship

Professionals who are citizens of certain countries may be eligible for one of three visas. An E-3 visa is for Australian nationals; the H-1B1 is for Chilean and Singaporean nationals; and the TN is for Canadian and Mexican nationals.

O-1 Visa

The O-1 visa is only available to those at the top of their field. Applicants must possess extraordinary ability in the sciences, arts, education, business, or athletics or have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements.

E-1 and E-2 Visa

E visas are intended for citizens of countries that have a special treaty with the U.S. An E-1 visa is known as the ‘Treaty Trader’ visa. It can be used by a citizen of a foreign country that has a treaty with the U.S. who engages in substantial trade between the U.S. and their home country. The trader or an employee of the trader who meets certain requirements can apply for the visa. 

An E-2 visa is known as the ‘Treaty Investor’ visa and it is available to a citizen of a foreign country that has a treaty with the U.S. who has invested, or is in the process of investing, a substantial amount of capital in a bona fide enterprise in the U.S. An individual can obtain an E-2 visa as an investor to develop and direct the investment enterprise, or as an employee of a qualifying business. 

F-1 Visa

An F-1 visa allows individuals to enter the U.S. to study at an educational institution as a full-time student. During the first academic year, students can work on campus. Thereafter, they may work off-campus for Curricular Practical Training (CPT). Some schools may offer CPT right away, though there are special considerations for “Day One” CPT programs.

L-1 Visa

Known as the ‘Intracompany Transferee’ visa, the L-1 visa allows U.S. employers to transfer certain employees from a foreign office to the U.S. The employee must be an executive, manager, or a professional employee with specialized knowledge relating to the organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets or have an advanced level of knowledge or expertise in the organization’s processes or procedures. Employees must have been employed in the office abroad for at least one out of the three years immediately preceding the L-1 application.

Cap-Exempt H-1B

Universities, nonprofit research organizations, and nonprofits affiliated with a university are not subject to the H-1B visa cap. As a result, such institutions and organizations can sponsor a foreign worker for an H-1B visa at any time without going through the lottery process.

Notably, a foreign worker with an approved Cap-Exempt H-1B visa can concurrently seek an H-1B visa outside of the lottery in order to work for a private sector employer. However, the worker must continue to work for both the cap-exempt employer and the private sector employer. Employment may be full- or part-time.

H-1B Lottery Process

In the event that USCIS has not approved enough H-1B petitions to reach the annual quota, the agency will run an additional lottery (or lotteries). Applicants who entered but were not selected in the initial lottery will automatically be included in all future lotteries – there is no need to submit a new registration or take other action. The earliest that the next lottery will be held is in July. USCIS ran multiple lotteries during most of the past few years, but it is too soon to predict what will happen in the coming months.

Please feel free to contact any of our attorneys if you have questions about the H-1B visa or any of the alternatives discussed herein.

NOTICE: Material provided on this website has been prepared by Kauff McGuire & Margolis LLP solely for general informational purposes, and it is not intended to and does not constitute legal advice. Material provided on the website is not privileged and does not create an attorney-client relationship with the Firm or any of its lawyers.