Not Selected in H-1B Cap Registration? There Are Options!

Foreign workers fill a critical need in the U.S. labor market, particularly in the professional and technological fields such as science, technology, engineering and mathematics (STEM). To fill this need, U.S. employers submit H-1B temporary worker visa status registrations with the United States Citizenship and Immigration Services (USCIS), which is a lottery-based system where registrations are selected from the congressionally allotted quota of 85,000. For the fiscal year 2024-2025, the registration period closed on March 22, 2024, and the selection of the 85,000 registrations occurred within six days. USCIS has yet to publish the percentage of selections, but it is likely, as happens every year, most employers’ needs will not be met. For registrants not selected for the first round of the H-1B cap, it is possible that there may be additional rounds of selections as historically seen in prior years. This occurs when USCIS has not received sufficient H-1B applications to meet the 85,000 annual quota, or when submitted petitions are rejected and slots re-open.

Apart from re-submitting the registration the year after, registrant companies may still have avenues that they can explore/use to retain or hire the foreign workers who were not selected. The following provides an overview of the common visa classifications available as alternative pathways to retain and or hire talented foreign workers:

H-1B with cap-exempt employer:  Employers that qualify as being “cap-exempt” may hire foreign workers in H-1B status. “Cap-exempt” employers include non-profit research organizations, government research organizations, higher education institutions or related non-profit entities. Cap-exempt H-1B visa holders may be permitted to remain in H-1B status for up to six years with additional extensions if certain requirements are met.

F-1 student status:  Most foreign nationals who graduate from U.S. universities are eligible to receive work authorizations for 12-month Optional Practical Training (OPT) and if in a qualifying STEM field, an additional 24-month period (subject to certain conditions). If not selected in the H-1B cap, employers may hire or continue to employ the student until the expiration of their OPT or STEM OPT. It should be mentioned that the work must be directly related to their major of study. 

H-1B1: Employers may take advantage of the H-1B1 visa program to employ professionals in specialty occupations who are citizens of Chile and Singapore. Although there is a limited annual quota of 1,400 in this category, it is seldom filled, and visas remain available for employers to utilize. The period of employment is one year with the option to renew indefinitely.

E-3: Another great option to hire professionals in specialty occupations is the E-3 program, which employers can utilize to hire citizens from Australia. The E-3 visa classification is limited to 10,500 nationals of Australia but like the H-1B1, is seldom filled and readily available. The period of employment under E-3 is up to a maximum of two years with no limit on renewals.

L-1: The L-1 intracompany transferee classification is also a useful category as an alternative to the H-1B if the regulatory requirements are satisfied by both employer and foreign national. This classification is beneficial for an employer to transfer its managerial/executive (L-1A) or specialized knowledge (L-1B) personnel from the qualifying employer overseas to join the U.S. counterpart. There are no annual quotas for L-1 classification and foreign national may be employed for seven or five years depending on the nature of the L-1 position.

E-2 employee: The E-2 essential employee is yet another avenue that employers can explore as an alternative in lieu of the H-1B.  The criteria to be met is that the employee must be of the same nationality of the investor or company/enterprise that has majority ownership in the business. The employee can be a manager/supervisor or even a worker with special skills making them essential to the running of the business. The advantage of the category is that there is no quota on the number of employees permitted and the E-2 visa employee can obtain the visa directly at the consulate of the employee’s home country without prior petition approval.

O-1: The O-1 classification is also a practical alternative for employers in cases where cap registration was not selected for the foreign national employee. However, to qualify under O-1, the foreign national must be able to demonstrate that they possess “extraordinary ability in the sciences, arts, education, business, or athletics and have been recognized nationally or internationally for those achievements” and have “sustained national and international” acclaim. There is no annual quota, and the O-1 category provides initial employment authorization of up to three years with options for indefinite extensions.

TN: The TN classification is a very commonly utilized program by employers to hire qualifying individuals who are citizens of Mexico or Canada. There is no annual quota prescribed for this category but the TN position to be filled must fall within the occupational categories listed in the Appendix A of the United States Mexico Canada Agreement (USMCA). Foreign nationals granted TN status may be granted employment authorization for an initial period of up to three years with the indefinite option for renewals.

As previously stated, only the commonly utilized non-immigrant visas have been enumerated above and this not an all-inclusive list of the available options. Since every visa classification has eligibility requirements that must be met to qualify, employers should contact knowledgeable immigration counsel to assess which visa category is proper to hire talented foreign workers to suit their needs.

Therefore, there is some is hope for employers and foreign nationals as there are multiple routes available to employers that can serve as a replacement for the coveted H-1B status.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.