Exploring Alternatives: What’s Next for Those Not Selected in the H-1B Lottery

USCIS selected 114,017 unique beneficiaries, resulting in 120,603 selected H-1B registrations during the initial FY 2025 H-1B Lottery. This represents a selection rate of approximately 25.6 percent. While this is an increase in the percentage of selections from the previous year, where the selection rate was roughly 14.6 percent, it still means that the vast majority of applicants were not selected and now face significant challenges for maintaining status and work authorization.

Thanks to its relatively straightforward requirements and eligibility to concurrently pursue permanent residence, the H-1B is a preferred option for employers looking to sponsor foreign workers. However, there may be alternative options for those that were not selected in the lottery and who need to maintain status and work authorization.

Furthermore, certain employers, such as universities, nonprofit entities related to or affiliated with an institution of higher education, nonprofit research organizations primarily engaged in basic research and/or applied research, and government entities also are “cap-exempt.” These employers can submit H-1B applications at any time of year without being subject to the fiscal limit. This means that these select employers can sponsor foreign nationals for H-1B visas even if they were not selected in the lottery. Likewise, nationals of Singapore and Chile are eligible for H-1B1 visas, which are not subject to the lottery (and while there is a numerical cap, it has never been reached).

For qualifying employers and employees, an L-1 visa may be a possible H-1B alternative for executives, managers, and employees with special skills or knowledge. An L-1 visa permits intracompany transfers between foreign and United States based offices for a temporary period. The employee must have worked for the foreign company for at least one full year in the past three years in order to qualify for an L visa. Similar to the H-1B, the L visa is a dual-intent visa, allowing Ls to apply for permanent residence while under L status. The L visa is divided into two categories, L-1A and L-1B. The L-1A is for transferring managers and executives and is valid for a maximum of seven years. The L-1B visa is for employees with specialized knowledge or skills and is valid for five years. L visas also have the extra benefit of allowing dependent work authorization.

Another potential alternative option for those looking to maintain status and work authorization is an O-1, a nonimmigrant visa granted to individuals with extraordinary ability or achievement. O-1s are classified into two categories: O-1A for individuals with extraordinary ability in the sciences, education, business, or athletics, and O-1B for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry. O-1 visas also allow dependents to accompany the primary, however, they are not eligible for work authorization.

For foreign nationals from Mexico and Canada, TN status allows “professionals” as defined by the U.S.-Mexico-Canada Agreement (USMCA, the successor to NAFTA) to work in the United States. TN status requires a job with a U.S. employer; self-employment would not qualify. Additionally, TN status is not dual intent.

For F-1 students who were not selected, they can still receive up to 12 months of OPT employment authorization after completing their academic studies, and those working in a STEM field can apply for a 24-month extension of this benefit. This will allow many individuals future opportunities to be selected in the lottery or obtain an alternate status.

Additionally, there are many other unique options for employment-based temporary visas for professionals who were not selected, such as H-3 trainees, J-1 cultural exchange workers, and R-1 non-ministerial workers. Some entrepreneurs from select countries may obtain E-2 nonimmigrant status to operate own and operate businesses in the United States. Each of these visas have unique and very specific requirements.

Apart from temporary visas, some individuals may qualify for permanent residence through a self-petition, allowing them to work without employer sponsorship. For instance, those who qualify for extraordinary ability visas (EB-1A) and EB-2 National Interest Waivers can petition for themselves. While possible to obtain, many individuals qualified for H-1B visas may not have the credentials for these visas, or may need more time to develop the qualifications needed.

Additionally, there may be visa backlogs for these preference categories at the time of filing, meaning that even if approved, the foreign national may need to wait to obtain lawful permanent residence. (But, the mere filing or even the approval of the eligibility case does not give the foreign national the right to remain in the United States.)

Outside of employment-based visas, it is possible to secure work authorization through a myriad of humanitarian benefits, including but not limited to pending asylum applicants, Temporary Protected Status (TPS), and deferred action. Even if not possible to secure employment authorization, foreign nationals not selected for an H-1B but also unprepared to leave the United States, may be able to change status to visitor visa status (B-2) or student visa status (F-1).