Immigration Options Remain For Employees Not Selected In The H-1B Cap Lottery – Work Visas

Highlights

• U.S. Citizenship and Immigration Services (USCIS) has announced
  that it has completed its annual H-1B cap lottery selection process
  for fiscal year 2025.




• While USCIS may conduct a subsequent lottery selection if
  additional visa slots remain after the initial filing period, many
  employers and employees may already be questioning their options
  moving forward.




• This Holland & Knight alert sets forth some common
  alternative immigration options for employers that have critical
  employees whose registrations were not selected in the H-1B
  lottery.

U.S. Citizenship and Immigration Services (USCIS) announced that
it has completed its annual H-1B cap lottery selection process for
fiscal year 2025. Given the high number of lottery registrations
and the fixed number of available slots, it is inevitable that many
employers will have workers who were not selected in the lottery.
While USCIS may conduct a subsequent lottery selection if
additional visa slots remain after the initial filing period, many
employers and employees may already be questioning their options
moving forward.

This Holland & Knight alert sets forth some common
alternative immigration options for employers that have critical
employees whose registrations were not selected in the H-1B
lottery.

Try Again Next Year

If an employee was not selected in this year’s H-1B lottery
but he or she remains work-authorized for another year or more,
there will be an opportunity to enter that employee into next
year’s lottery.

H-1B Cap-Exempt Employers

Certain employers are considered exempt from the H-1B cap. Those
employers include institutions of higher education or
related/affiliated nonprofit entities and nonprofit or governmental
research organizations. If the employee maintains a qualifying H-1B
position with a cap-exempt employer, he or she may be eligible to
work for the organization on a concurrent basis so long as he or
she remains employed by the cap-exempt employer for the duration of
the H-1B period of authorization. Employees may also qualify for
H-1B cap-exempt status if they are placed at a cap-exempt
employer’s location as a worksite.

F-1 Students

Employees in the United States in F-1 student status may be
eligible for 12 months of optional practical training (OPT). In
some cases, student visa holders are eligible for up to 36 months
of work authorization if their degrees were in a qualifying STEM
field. Some degree programs allow F-1 students to work on a full-
or part-time basis pursuant to curricular practical training (CPT)
while completing their degrees. Employees currently on F-1 student
visas are encouraged to speak with their designated school official
(DSO) to identify work authorization options pursuant to OPT, STEM
Optional Practical Training (STEM OPT) or CPT.

F-1 students may also consider going back to school to earn a
higher-level degree in the United States.

O-1 Visa

O-1 visas are reserved for those individuals who have
extraordinary ability in the sciences, education, business, arts or
athletics, or who have shown extraordinary achievement in the
motion picture or television industry. While this visa category has
robust requirements and a high bar for approval, it may provide
work authorization in the United States for an initial period of
three years with extensions permitted in one-year increments. There
is no maximum number of extensions for O-1 visa holders.

E-3 Visas for Australian Nationals

Employees with Australian citizenship may be eligible to apply
for an E-3 visa if the position qualifies as a specialty occupation
and the employees are qualified for the position. These visas are
valid for two-year periods with extensions permitted in additional
two-year increments. There is no maximum number of extensions for
E-3 visa holders.

TN Visas for Mexican and Canadian Nationals

Employees with Mexican or Canadian citizenship may be eligible
to apply for a TN visa if the position is designated under the
U.S.-Mexico-Canada Agreement (USMCA) – Chapter 16, Appendix 2
List of Professional Occupations. These visas are generally valid
for three-year periods with extensions permitted in additional
three-year increments. There is no maximum number of extensions for
TN visa holders.

L-1 Intracompany Transfer

The L-1 intracompany transfer visa is for managers, executives
or individuals with specialized knowledge who have worked for a
related entity abroad for more than one full year and who are
transferring to the U.S. to work in a similar capacity. If a
company has international operations or the ability to send
employees abroad to work remotely in a country where they are
work-authorized, then the L-1 visa may be an option.

J-1 Visas

J-1 visas are granted through U.S. Department of State-approved
programs for teaching, instructing or lecturing, studying,
observing, conducting research, consulting, demonstrating special
skills, receiving training, or receiving graduate medical education
or training. This may provide an alternative to the H-1B visa for
certain occupations, such as professor, research assistant,
research scholar and others.

Dependent Spouses

In some cases, if the employee is married to someone on a
different visa type (e.g., L-1, H-1B, E, etc.) or to a U.S.
citizen, he or she may be eligible for work authorization as a
dependent spouse.

Green Card

There are many types of green cards available to foreign
workers. Some green card types can provide an accelerated path to
U.S. work authorization while others can take years. Eligibility
for the various types of green cards must be made on a case-by-case
basis, but in some circumstances, the employee may be eligible for
an accelerated path to work authorization, and, ultimately,
permanent residence.

There are many potential options available to those employees
who were not selected in this year’s H-1B cap lottery.
Determining the best alternative strategy will depend on an
individual’s nationality, qualifications, immigration status
and more.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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