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.
