The H-1B visa lottery is a significant event for companies hoping to hire highly skilled foreign workers. But with limited slots and high demand each year, many qualified candidates are not selected — leaving both employees and employers in a difficult position. As an HR leader, it’s important to take a proactive approach in supporting affected employees. By exploring alternative visa options and strategies, you can help retain key talent and ensure continuity within your organization. Here are practical steps and options to consider:
- Plan for Future H-1B Lottery Applications
- Potential for Additional Lotteries: While initial selections have been made by USCIS, secondary and even tertiary secretions may be made if an initial selection does not move forward with the H-1B process.
- Early Preparation: Begin preparations for the next H-1B lottery cycle well in advance. Ensure all documentation is accurate and complete to avoid delays.
- Multiple Registrations: While maintaining compliance with USCIS regulations, consider submitting registrations for multiple candidates to improve the chances of selection.
- Explore Alternative Visa Options
- L-1 Visa (Intracompany Transfer): If your company has offices abroad, consider transferring the employee to an international branch. After meeting the L-1 visa requirements, they may return to the U.S. under this category.
- O-1 Visa (Individuals with Extraordinary Ability): For employees who have demonstrated exceptional expertise in their field, the O-1 visa offers an alternative pathway. Assess whether the employee’s qualifications meet the O-1 criteria.
- TN Visa (For Canadian and Mexican Citizens): Under the United States-Mexico-Canada Agreement (USMCA), citizens of Canada and Mexico may be eligible for the TN visa, allowing them to work in certain professional occupations in the U.S.
- E-3 Visa (For Australian Citizens): Australian nationals may qualify for the E-3 visa, which is similar to the H-1B but exclusively available to Australians.
- H-1B1 Visa (For Chilean and Singaporean Citizens): Citizens of Chile and Singapore have access to the H-1B1 visa category, which is similar to the H-1B but with its own annual cap. This option may be easier to secure, since it generally sees less competition than the standard H-1B.
- Cap-Exempt H-1B Employment: Certain nonprofit, research, or higher education institutions can sponsor H-1B workers without being subject to the lottery. Explore partnerships or roles within such organizations.
- Consider Further Education Opportunities
- Advanced Degrees: Encourage employees to pursue higher education, such as a master’s or Ph.D., which may open up additional visa opportunities and enhance their qualifications for future H-1B applications.
- Day 1 Curricular Practical Training (CPT) Programs: Some universities offer CPT from the first day of enrollment, allowing students to work while studying. This can be a viable option to maintain employment authorization.
- Secure Employment Abroad
- Work for a U.S. Employer Overseas: Some U.S. companies hire employees abroad and later transfer them back on an L-1 visa.
- Gain Experience and Reapply Later: Working in another country may strengthen the employee’s qualifications for future visa applications.
- Consult with Immigration Experts
- Legal Guidance: Engage with experienced immigration attorneys to navigate the complex visa landscape effectively. They can provide tailored advice based on the specific circumstances of each employee and your organization.
- Maintain Open Communication
- Employee Support: Keep the lines of communication open with affected employees. Provide them with information about their options and support them through the decision-making process.
- Explore Additional Strategies
- Concurrent Employment with Cap-Exempt Employers: Employees may be eligible for concurrent H-1B employment with both a cap-exempt and a cap-subject employer. If the employee secures a position with a cap-exempt institution (such as a university or affiliated nonprofit), a cap-subject employer can file a concurrent H-1B petition, allowing the employee to work for both organizations simultaneously.
- B-1 in Lieu of H-1B Visa: For short-term, specialized assignments, the B-1 visa in lieu of H-1B allows employees to perform H-1B-level work in the U.S. while remaining on the foreign employer’s payroll. This option is suitable for temporary projects and requires careful adherence to specific criteria.
- Employer-Sponsored Green Card Applications: Consider initiating the employment-based green card process for key employees. While this is a longer-term solution and doesn’t provide immediate work authorization, starting the process can demonstrate the company’s commitment to retaining the employee and may align with the employee’s long-term residency goals.
- Global Mobility Options: If your organization has international operations, consider assigning the employee to a position abroad. This strategy allows the employee to continue contributing to the company while potentially becoming eligible for L-1 intracompany transferee status in the future.
Boundless Tip
Cap-exempt employers — such as nonprofit universities and research institutions — can sponsor H-1B visas year-round, without being limited by the annual lottery.
This becomes especially useful in concurrent employment situations. If you’re employed by a cap-exempt organization, a cap-subject employer (like a private company) may be able to file a concurrent H-1B petition, allowing you to work for both employers at the same time — without going through the lottery again.
By exploring alternative options and offering support, HR managers can help employees who weren’t selected in the H-1B lottery continue working legally in the U.S., while at the same time ensuring their organizations retain top international talent.