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  • Writer's pictureLeyla McMullen, Mdivani Business Immigration Lawyer

Didn’t Get Selected in the Cap H-1B Lottery?  Other Options for Employers to Consider.

What Do Employers Need to Know Now?

The USCIS has finished making their first round of selections for the Cap H-1B lottery, for positions starting as early as October 1, 2024. 

If Selected in the Lottery:

If you were fortunate and you and your employee/s were selected, you will hopefully have already filed your H-1B petition for your selected employee/s. If you have not filed it yet, there is still time, and you should file it as soon as possible.  The deadline for Cap H-1B petitions to be filed with USCIS is June 30, 2024.

If Not Selected in the Lottery:

If you and your employee were not selected for the lottery in the first round of selections, there is still a chance you will be selected when USCIS conducts a second lottery, most likely after the end of the Summer.  However, you should start thinking about other alternatives to legally employ your foreign worker in case you are not selected during the second round.  First, you need to determine when your worker’s work authorization will expire, and then determine if they are eligible for additional work authorization.  Many workers are eligible for an additional two years of work authorization through the STEM OPT program, depending on which degree/s they completed. 

Possible Alternatives for Non-Selected Candidates:

1.    Cap Exempt Analysis


It’s always a good idea to consult with an experienced business immigration lawyer to see if the employer might qualify for a cap exempt H-1B.  Sometimes employers are actually not subject to the H-1B cap but they do not realize it.  An employer may be cap exempt, for example, if they are a non-profit or government owned entity affiliated with an institution of higher education.  There are other cap exempt categories that are not as common, but that employers should explore with their counsel. 


2.    Another visa category:


As the employer, you should explore other visa options.  For example, an H-1B1 (for employees who are citizens of Chile or Singapore), a TN visa (for employees who are citizens of Canada or Mexico), E-3 visa (for eligible Australian employees.)  Not all employees from these countries may qualify, but it is worth exploring the options with your business immigration lawyer.


3.    Starting Green Card Process:


While the Green Card process may take time, it may be a good alternative in some cases.


4.    Employee Returning to School


In some cases, the employee may return to school and obtain temporary work authorization to participate in either a part time or full-time internship with the employer. 

In other cases, the employee may return to school for a higher degree that may yield another year of OPT work authorization upon completion in addition to part time curricular training while the employee is in school.

It’s important to make sure the degree is a good match and that the internship qualifies for work authorization. 


5.    Family Immigration Process


Sometimes employees may qualify for the family immigration process, and the employer may be able to assist with paying for legal and filing fees for the family immigration process in order to retain the worker.  Of course, the employee must have a legitimate family process, not entered into for purposes of immigration. 

The employer needs to tread carefully because asking certain questions may violate other employment laws.  Always consult with counsel before asking the employee personal questions.  Some employers opt to put a policy in place that the employer will support family cases by paying the legal and filing fees.  They make this policy known in the workplace and then employees will usually approach the employer to ask if the employer might be willing to assist them financially with their family immigration process.  In some cases, the employee has a viable family immigration process option but is hesitant to ask the employer if they might assist financially. 


 Plan of Action:

We recommend having a back-up plan in place for if you are not selected for the lottery.  For example, we recommend starting a Prevailing Wage for Green Card process early, because it can take a long time to get through the first steps with Department of Labor.  We also recommend scheduling a planning meeting with your employee and your business immigration counsel to discuss other eligibility, or if the family immigration process might be an option.  Employers should contact their business immigration attorney for specific advice. 


If you are an Employer looking for ways to continue to employ your international talent, and to learn more about available visa options and lawful permanent residency process, you might consider taking an online training through Corporate Immigration Compliance Institute.  Link to available trainings here:

Leyla McMullen, Corporate Immigration Lawyer

Mdivani Corporate Immigration Law Firm


The information on this website is for general information purposes only, it is not legal advice applicable to a specific situation.  Viewing it does not create an attorney-client relationship.

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