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Employment Based Visa Options if You Are Not Selected in the H-1B Cap Lottery

Bridge Team Member

Every year, more and more people apply for the H-1B visa and so the chances of getting selected in the lottery becomes slimmer. So for those that don’t get selected into the lottery, their first question is: What next? You might see people joke online and respond with “You can marry a U.S. Citizen or a Green Card holder!” This is an option, but there are other options to choose from as well. We’ll go over the most common ones here:

O-1

If an individual possesses extraordinary ability in the sciences, arts, education, business, or athletics, or has demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements, they may be eligible for the O-1 visa. You don’t need a Nobel Peace Prize to be eligible, but you will need to provide sufficient evidence of your extraordinary ability such as receipt of nationally or internationally recognized awards/prizes, published material in professional or major trade publications, newspapers or other major media, or authorship of scholarly articles in professional journals. More information about the O-1 visa can be found here.

F-1

If you’ve thought about obtaining a U.S. Bachelor’s degree if you don’t have one or have thought about going back to school to obtain an advanced degree, such as a Master’s degree or PhD, attending an accredited university in the U.S. will give you the opportunity to work through the Curricular Practical Training (CPT) program or Optional Practical Training (OPT) program.

CPT allows F-1 students to gain practical experience directly related to their major through employment, paid/unpaid internships, or cooperative education. CPT must be completed before graduation and can be either full-time or part-time. However, if an individual works full-time for 12 months in CPT, they will no longer be eligible for OPT.

OPT allows F-1 students to work up to 12 months in relation to their major of study. They are eligible for OPT after finishing up their first academic year. The OPT program is 12 months long. However, for those who have a degree in the field of science, technology, engineering, or mathematics (STEM), they may be eligible to apply for a 24-month extension of their post-completion OPT employment authorization. It is recommended that students apply for the extension.

Please note that an individual is only eligible for 12 months of full-time OPT per academic level. So if an individual completed 12 months of OPT after obtaining a Bachelor’s degree, they cannot do OPT again if they go back for another Bachelor’s degree. However, if the individual goes back to school to obtain an advanced degree, they can apply for another 12 months of OPT.

Dependent Status Which Allows You to Work

If you're currently in L-2, H-4 (and your spouse has a Green Card process going), or are a E-1/E-2/E-3 dependent and your spouse is maintaining their work visa status, you may be eligible to work in the U.S. You'll need to apply for an employment authorization document (EAD) by filing Form I-765. With an EAD, you'll be able to work with any employer.

J-1 Trainee Visa

As a J-1 trainee visa, an individual will train at a host company/organization under the authority of a DOS-certified sponsor. Training programs are designed to allow international professionals to come to the U.S. to gain exposure to U.S. culture and to receive training in U.S. business practices in their chosen occupational field.

To qualify for a J-1 trainee visa, an individual must have a degree or professional certificate from a foreign post-secondary academic institution and at least one year of prior related work experience in his or her occupational field outside the U.S. or have at least 5 years of work experience outside the U.S. in the occupational field in which they are seeking training.

Cap-Exempt Companies

Another way to obtain an H-1B is to find and accept a position at a higher education (or related nonprofit entities), nonprofit research organizations, and government research organizations. These organizations are Cap-exempt, which means that if they want to sponsor an individual for the H-1B, they won't be subject to the Cap. However, if an individual later decides to work for a for-profit company, they'll be subject to the Cap and will need to go through the lottery system.

More Options

Citizens of Canada and Mexico, if eligible, may be qualified for the TN NAFTA professional visa. Australian citizens are eligible for the E-3 specialty occupation professional visa. Citizens of Singapore and Chile may be eligible for the H-1B1 specialty occupation professional visa. If an individual is currently working at a company abroad, has been working there for at least one year, and the company has offices in the U.S., they may be eligible for the L-1 intracompany transfer visa. There are other options out there such as the B-1 in lieu of H-1B, E-1, E-2, etc.!

Also, don't give up. If you weren't selected in the lottery, you should try again next year! Re-applying does not lessen your chances.

If you have any questions about these alternative visa types, please don’t hesitate to contact us at support@bridge.legal.

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.

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