USCIS announced they received enough registrations to satisfy the FY2024 H-1B cap for both the regular cap and the master’s cap. Selection status is shown in the employer’s MyUSCIS account. It is uncertain if this will be the only selection process or not. USCIS has not, as of the time of writing, released the total number of registrations received and the number selected in the initial lottery. If selected, individuals have a 90-day period to file an H-1B petition. If not selected, there are options.
Possible Additional Selection Rounds
While the possibility is entirely unknown, there may be future lottery selections. In 2020 and 2021, USCIS completed two additional selections after the initial selection. In 2022, no additional selections were made. There is no way to know if this will occur in 2023 or not.
Higher Education
If you hold a valid F-1 status and are not selected in the H-1B cap, continuing your education is an option. If you haven’t yet graduated, OPT may be an option for you, until it expires. If you are eligible for the 24 months of STEM OPT extension, that is another option. Remember, you must fulfill all OPT requirements. During this time, you can continue to wait in the hopes of being picked for the next H-1B cap.
If your OPT or STEM/OPT is nearing expiration, an option is to continue your studies in a higher degree program. If you have already earned your master’s degree, you will need to move to a Ph.D. program. You must move to a higher degree program if you are hoping to continue practical training. USCIS allows 12 months of practical training for each degree level, with the exception of the 24-month STEM/OPT extension. If you have used this time period, a higher degree program is needed to continue. If you choose a second master’s program but have used your OPT time, you will not qualify for additional OPT.
If you have questions about your options, contact us. We can answer any specific questions you have and guide you for your situation.
Cap Exempt Employers
Cap-exempt employers can hire individuals without the H-1B cap limitations. These generally include nonprofit organizations, higher education institutions, nonprofit research groups, and government research organizations. If you can secure employment with a cap-exempt employer, you will not be subject to the H-1B Cap.
If you are working for an H-1B cap-exempt organization and want to transfer to an H-1B cap-subject employer, you will need to complete the H-1B cap process in the following year. You cannot move from a cap-exempt employer to a cap-subject employer without completed the H-1B cap process. You can, however, transfer to other H-1B cap-exempt organization. Exceptions apply if you are working part-time and when filed concurrently while working for an H-1B cap exempt employer. Again, it’s best to work with a qualified and experienced immigration attorney to ensure you are in compliance.
U.S. Qualifying Treaties
The U.S. has treaties that you may qualify for. The H-1B1 visa, for nationals of Singapore and Chile, the TN visa for nationals of Mexico and Canada, and the E-3 visa for Australian nationals, may be an option. The E-1, treaty trader, and E-2, treaty investor, visas are available for foreign nationals with qualifying treaties with the U.S. If you are a national from any of these countries, these may be an option. With these options, legal guidance is critical. Contact us to find out more.
Work Remotely Outside the U.S.
Individuals can work outside the U.S. for a U.S. based company. Commonly referred to as ‘nearshore’ or ‘offshore’, if hired by a U.S. company who supports workers outside the U.S. and all that is required of them, this is another option. Since the COVID pandemic, remote work has become far more typical for many organizations. While not ideal, working remotely for a U.S. company may create other options down the road, including the L-1 status. Only the hiring company can determine if this is an option.
Other Nonimmigrant Visa Options
Other nonimmigrant visas may be an option for you.
The L-1 visa lets multinational companies relocate individuals to the U.S. under specific scenarios. Generally, qualifying individuals are managers, executives, or employees with specialized knowledge. There is no cap or lottery for L-1 visas. As these visas are driven by the multinational company itself, you will need to be employed by a qualifying multinational company.
The O-1A visa is generally for individuals who have proven extraordinary ability in the sciences, arts, education, business, or athletics. The extraordinary ability must be proven by sustained national or international acclaim. Qualifying individuals must prove they are coming to the U.S. temporarily in order to continue working in the area of their extraordinary ability. A very small percentage of people qualify for this visa.
Direct Green Card Processing
Most employees in the U.S. work under a nonimmigrant visa before their employer chooses to sponsor the employee for a green card. It is possible for an employer to directly sponsor an individual for a green card, without first employing the person under an H-1B status. Clearly, this is up to the individual employer.
Summary
It’s not ideal when your registration is not selected under the H-1B cap. But, even if your registration was not picked, there are options. The key is to work with an experienced and qualified immigration attorney who understands the options available for your specific situation.
If you have questions, contact us. Our team of experienced and educated attorneys actively monitor ongoing updates and understand well the nuances of each option.