Oh no! My H-1B wasn’t chosen in the lottery! What do I do now?

April 04, 2014
Minsky, McCormick & Hallagan

After Monday, April 7, 2014, U.S. Citizenship and Immigration Services (USCIS) will no longer accept H-1B petitions for the 2015 Fiscal Year and will conduct a lottery over the next few weeks to determine who will have the chance of obtaining a new H-1B. Whether you are an employer that has petitioned on behalf of an H-1B worker or a foreign national looking to obtain an H-1B, the next few weeks will likely be stressful as you wonder whether your petition will be accepted. You may also be wondering what your options are if your petition is not chosen in the lottery. The following is a breakdown of several options to think about in case your petition is not chosen:

1.)   Find an alternative work authorized status:

Determine if you are eligible to change to another work authorized status. We reviewed several of these options in our blog titled Company Options After the H-1B Cap is Reached.

2.)  Depend on your spouse:

If your spouse has his or her own independent nonimmigrant status in the U.S. or is eligible to change to an independent status, you can file a petition to become your spouses’ dependent upon notification of the rejection or upon expiration of your F-1 status (if applicable). In some instances, you may even be able to work while you are in dependent status. Spouses of foreign national taking part in a J-1 intercultural exchange program or working as an E-1 Treaty TraderE-2 Treaty Investor, E-3 Specialty Occupation Professional from Australia, L-1A Intercompany Transferee Executive or Manager, or L-1B Intercompany Transferee with Specialized Knowledge, have the ability to apply for work authorization. Therefore, if your spouse is currently in one of these statuses or is eligible to apply for one of these statues, you may be eligible for work authorization as your spouse’s dependent.

3.)  Hit the Books:

If you have been considering returning to school to pursue a graduate degree, this may be the time to change to F-1 status. There are even some programs that allow you to work in Curricular Practical Training (CPT) during your first year under certain circumstances.

4.)  Train for your Career:

You could also take part in a training program related to your field by applying for J-1 or an H-3 trainee status.

5.)  Invest in the U.S.:

If you have some money to spare and would like to make a significant investment in the U.S., you may consider applying for E-2 Treaty Investor status or for a green card as an EB-5 Immigrant Investor.

We wish everyone the best of luck in the H-1B lottery. However, if you are not chosen in the lottery, please feel free to contact our office to discuss your options. We’re happy to turn no H-1B into no problem.

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