Written by attorney Calvin T. Sun

H-1B Lottery Fail: Now What?

Did you lose out in the fiscal year 2014 H-1B lottery? That is, did your petition fail to be selected? If so, I am sorry for your situation, and offer some thoughts that I hope will help you. In doing so, I am assuming that you were in your OPT period, a "regular" F-1 program study period or your grace period on the date your petition was filed, and this date would have been between April 1 and April 5. I assume further that you have no issues with the J-1 exchange visitor two-year-return-home rule—that is, you never had J status, the rule didn't apply to you or else you fulfilled or waived the requirement. I also assume that you have maintained the conditions of your status. I also am assuming that the employer who petitioned for you really is subject to the H-1B cap, and your job really is subject to the cap. Please understand that I have not mentioned every possible alternative that might apply to you, and that the alternatives I do mention might not apply to you. In addition, of course, this post does not constitute legal advice. Every situation is different, so if you have questions or issues, I strongly recommend that you seek qualified legal advice. Here are things to consider: 1. Keep track of your “depart-by" date. This date will be 60 days from either your program end date, or the date of your notice of petition non-selection, whichever is later. By the end of this time, you must have taken steps to maintain lawful presence, or else have departed the US. Unless you take such steps, you will be unlawfully present in the US past the end of this 60 day period. Please see "If the student’s H-1B petition is denied, withdrawn, revoked, or is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States." 2. Make sure you yourself really are subject to the cap “What?" you say. “Calvin already said he assumed the employer is subject to the cap. Why is he now talking about me and the cap." I raise this point because even though an employer is subject to the cap, in some cases the employee him/herself actually might be EXEMPT. In particular, such a situation would arise if the employee previously had H-1B status. For example, suppose a person received a master degree, then began work in an H-1B job for a cap-subject employer for a year. The person then returned to school for a second master degree, graduated and now is seeking an H-1B job again. In this case, the person is exempt from the H-1B cap because the person already was counted against the cap for the first job. When preparing your petition, your attorney should have asked you about previous H-1B status. If he or she didn’t, however, and you did previously have such status, you possibly might actually have such an exemption. 3. Work FOR a cap-exempt employer Although most employers are subject to the H-1B cap, some are not. These cap-exempt employers are - in general, institutions of higher education and qualifying affiliated entities - governmental research organizations - non-profit research organizations Note that, unfortunately, simply being non-profit, or simply being a non-governmental organization (NGO) by themselves do not make an employer cap-exempt. If you can become hired by a cap-exempt employer, and you and your job otherwise qualify for H-1B, then you are not bound by the “file no earlier than April 1" and the “begin work no earlier than October 1" rules. You would be able to work as soon as your petition is approved, even though the H-1B cap already is full for fiscal year 2014. 4. Work FOR a cap-subject employer, but AT a cap-exempt organization Even though you might be working for an employer that is subject to the cap, you actually would be exempt if your work is performed at an organization that is exempt from the cap, and your work furthers the objectives of that cap-exempt organization. For example, you might be hired as a researcher from cap-subject company A, but then company A places you at university U to do work that furthers the mission of U. In such a case, you could be cap-exempt even though you work for company A. 5. Seek concurrent H-1B employment Remember that H-1B work need not be full-time, rather it can be part-time as well. Suppose you are working already part time for a cap-exempt organization, and a cap-subject employer now wants to hire you in H-1B status. Your petition and status for the cap-subject job will be exempt from the cap so long as you work for both employers at the same time. 6. Seek other employment status other than H-1B H-1B is not the only status that allows employment in the US. Some others include the following: - R-1 religious worker or minister - G-4 employee of international organization, e.g. World Bank - E -1/E-2 treaty trader/investor specialized employee Each of these statuses has its own specific requirements. In particular, this last status requires the existence of a treaty of commerce and navigation between the US and another country. Ownership of the hiring company must be by nationals of the treaty country, and the person being hired in E-1 or E-2 status must have that same nationality. Although Taiwan has such a treaty, unfortunately China does not. 7. Extend your STEM OPT by 17 months As you probably know, those people with degrees in science, technology, engineering or mathematics (STEM subjects) are eligible for a 17-month extension of OPT, for a total of 29 months. In this case, such an extension probably will keep you in status until the fiscal year 2015 filings begin, on April 1, 2014. To confirm your eligiblity, check page 3 of your I-20. The field labeled "primary major" should have a numeric code, known as a CIP code. If this code appears on the STEM list of U.S. Immigration and Customs Enforcement (ICE),, then you are eligible. Your request for the STEM extension be timely. Also, your employer must be enrolled in e-Verify. 8. Seek other ways to remain legally in the US You might be able to stay lawfully in the US without working. Some ways include the following: - Get married Stop laughing, this option is a real one, subject to the cautions I list below. Non-immigrant statuses have a corresponding status for dependents, such as a spouse or children. For example, the spouse of an H-1B worker can have H-4 status; the spouse of F-1 student can have F-2 and the spouse of a J-1 exchange visitor can have J-2. If you were to marry, instead of a non-immigrant, a US citizen, then you would be considered an “immediate relative." Therefore, you would have immediate access to an immigrant visa, because their supply is infinite for immediate relatives. That is, you would not be bound by the dates listed in the State Department visa bulletin. However, please be sure that your marriage is bona fide. Those who use or attempt to use marriage to evade US immigration laws can face severe legal consequences, including prison time, fines, removal from the US and (in the case of a naturalized US citizen) loss of citizenship. - Return to school Returning to school would keep you in F-1 status. However, depending on the level of program, you may or may not be eligible for OPT. I hope this information helps you, and more importantly, I hope you don't view your situation as the end of the world. I can be reached at [email protected].

Free Q&A with lawyers in your area

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer