H-1B Rejections for Unselected Petitions and Employment Options for Professionals


Throughout the next few months, USCIS will begin the process of returning H-1B petitions that were not selected in the H-1B lottery for fiscal year 2017. Each package will contain the respective H-1B petition along with a rejection notice specifying that the petition was not selected in the lottery. If you would like a copy of your rejection notice, please contact your employer or the attorney that filed your petition with USCIS. If you were not selected in the H-1B lottery for fiscal year 2017, there are a few visa options you may want to consider applying for. As always you can visit our website to read about the various different visa types that may be available to you. To discuss your options moving forward, please contact us for a consultation. Do not despair. Many applicants that were not selected in the H-1B lottery in previous years, have been chosen in subsequent years.

Long Term Options for Employment

Employment-Based Green Card

Typically, the employment-based green card application is the most permanent long term option for employment. The drawback is that obtaining an employment-based green card is a very long process that will require you to maintain another nonimmigrant status, while your green card application is pending. For more information on employment-based green cards please click here.

Family-Based Green Card (Adjustment of Status within the United States)

If you are the spouse, parent or child of a U.S. citizen, you may be eligible for family-based permanent residency. The green card application includes the application for employment authorization, which is granted within 3 months of filing. Employment authorization allows the applicant to work while their application is in process. Please be aware that the 3-month time frame for employment authorization is only for applicants applying for adjustment of status from within the United States. For more information about this process please click here.

H-1B Cap-Exempt Employer

Another good alternative is applying for the H-1B visa with an American organization that is exempt from the H-1B cap. Such organizations that may be exempt from the cap include: institutions of higher education, non-profit organizations and government research organizations. If you are employed by a non-profit organization that is related to or affiliated with an institution of higher education, you may apply for an H-1B cap-exempt visa. If you are an employee of an organization that is not cap-exempt, but you will be performing your job duties at an institution that is exempt from the H-1B visa cap, your employer may be able to file a cap-exempt petition on your behalf. In this situation, your employer will be required to provide documented evidence showing that the job duties to be performed are similar to those performed by workers of the cap-exempt organization.

L-1 Intracompany Transferee

If you are working for an employer abroad that also operates in the United States, you may consider approaching them to discuss the possibility of applying for an L-1 petition on your behalf. The L-1 visa classification is typically a good option for foreign nationals who are either interested in coming to the United States to run an existing affiliated business, or for entrepreneurs who have an existing foreign business abroad, and wish to come to the United States to create a new branch of their business in the United States.

The L-1 visa gives businesses with foreign offices the ability to transfer an executive, manager, or employee possessing specialized knowledge, to an affiliated office in the United States. The L-1 visa also allows intracompany executives, managers, or employees to travel to the United States for the purpose of establishing a new affiliated U.S. office.

To be eligible for the L-1 visa you must be a worker with specialized knowledge, who has worked abroad for the qualifying organization for at least one year within the last 3 years preceding the filing of your application. The organization must transfer you to the United States to work as an executive, manager, or worker. The L-1 visa makes two distinctions. The L-1A is a subcategory for managers and executives, and the L-1B is a subcategory for workers possessing specialized knowledge, advanced knowledge, or expertise in the organization’s processes, services, or products. The L-1A category is good for up to 7 years and the L-1B category is good for up to 5 years. The L-1 visa is not extendable beyond these time limits.

O-1 Extraordinary Ability 

The O-1 visa is a difficult visa to obtain. This visa is designed for individuals who can demonstrate their “extraordinary abilities” and seek to work in their field of endeavor. O-1 visa applicants must demonstrate that they exceptional and at the top of their field. It is typically more likely for an individual to obtain this visa if they have received awards of international recognition, such as a Nobel Prize or Academy Award, or other major recognitions. It is also possible for innovative foreign entrepreneurs, and internationally recognized researchers to obtain this visa type. This visa type is very document intensive and requires that the applicant prove their extraordinary ability through the recognitions they have received and the vast contributions they have made in their field of expertise. We have had the privilege of filing many successful petitions for innovative entrepreneurs such as software developers, engineers, and computer scientists. The period of stay for O-1 visa holders is the time necessary for the event or activity up to a period of three years.

TN Visa for Citizens of Mexico or Canada

The TN visa is a good option for Canadian or Mexican citizens. This visa type is for professionals only. TN visa applicants must be offered a professional job in one of the specified occupational categories covered by NAFTA including: computer systems analyst, engineer, economist, lawyer, management consultant, biologist, chemist, industrial designer and accountant. The applicant may apply for this visa at a U.S. consulate or port of entry.

The maximum period of initial admission into the U.S is three years. The US Citizenship and Immigration Services (USCIS) grants extensions of stay in time amounts of one year. There is no limit on the number of years a TN visa holder can stay in the United States. However, the TN visa status is not for permanent residence.

E-1/E-2 Treaty Trader or Investor 

The E-1 visa is intended for foreign nationals of a country with which a qualifying treaty of friendship, commerce, navigation, or a similar agreement exists with the United States. Nationals (individuals or companies) of such countries can obtain visas to work in the USA in order to develop and direct their trade with the USA. Additionally, the E-1 visa requires the principal treaty trader to engage in substantial trade and carry on principal trade between the United States and the qualifying treaty country.

You may be eligible for an E-2 visa if you invest a substantial amount of money in a new or existing U.S. business. You must be from a country that has a treaty of commerce with the United States or a country designated by Congress as eligible for participation in the E-2 nonimmigrant visa program. For a list of treaty countries, visit the Department of State website.

A treaty trader may be admitted for an initial period of no more than 2 years. The spouse and minor children accompanying the principal treaty trader shall be admitted for the period during which the principal is in valid treaty trader status. Extensions of stay can be granted in increments of two years, with no outer limit on the total period of stay for the alien.

E-3 Specialty Occupation Professionals from Australia

The E-3 classification is only for Australian foreign nationals. In order to be eligible, Australian nationals must travel to the United States for the purpose of performing services in a specialty occupation. The applicant must obtain a legitimate employment offer and provide evidence of their qualifications (academic equivalence to a bachelor’s degree or relevant work experience). Applicants may apply at a U.S. Consulate. An E-3 visa holder may be admitted for an initial period of no more than 2 years. The spouse and minor children accompanying the principal E-3 visa holder shall be admitted for the period during which the principal is in valid E-3 status. Extensions of stay can be granted in increments of two years, generally with no limit on the amount of extensions that can be sought.

Short Term Options for Employment

H-3 Training Program

The H-3 classification applies to trainees who wish to receive training in the United States that is unavailable in the foreign national’s home country. It also applies to special education exchange visitors who plan to participate in a special education exchange visitor training program in the United States for the purposes of gaining experience educating children with physical, mental, and emotional disabilities. H-3 visas for special education exchange visitors are subject to a statutory numerical cap limitation of a maximum of 50 visas issued per fiscal year. Although the H-3 visa training program is specifically oriented toward employment, the program is designed to equip the trainee with the necessary skills and experience, in order for the trainee to undertake employment outside of the United States. The H-3 visa is valid for a period of up to 2 years of regular training and up to 18 months for special education exchange visitors.

 J-1 Foreign Exchange Visitor Program

The J-1 visa is a nonimmigrant visa type that allows foreign nationals to enter the U.S. for the purpose of participating in an exchange program in order to promote the interchange of persons, knowledge and skills in the fields of education, arts and sciences. The goal of the J-1 visa program is designed to equip the trainee with the necessary skills and experience that will assist the trainee to undertake employment outside of the United States.

J-1 foreign-exchange visitors may participate in work or study-based exchange programs. For employment-based programs, employment may be authorized to J-1 visa holders based on the specific terms of their agreement with the sponsoring agency. Such terms must be explicitly stated in the visa holder’s DS-2019 Certificate of Eligibility for Exchange Visitor or training plan including compensation and worksite location(s). The J-1 recipient may not accept employment from any other agency that is not stated in the terms of the agreement.

The length of a J-1 visa program varies substantially. J-1 programs may last several weeks or several years. An employer may be a direct J-1 sponsor if they have a formal, structured training program designed to assist the business in utilizing the trainee’s skills overseas in the future. If the employer does not have a formal training program, they may work with a variety of “umbrella organizations” designated by the Department of State to provide a J-1 training program for up to 18 months. The J-1 visa should only be considered as a short-term option. It is not a good option for individuals seeking a long-term solution for work authorization. Be aware that certain J-1 exchange programs are subject to a two-year home residency requirement (also known as the 2-year rule) in cases where the exchange program was partially or wholly financed by the U.S. federal government or the government of your nationality. The two-year home residency requirement stipulates that the the foreign national and dependents must return to their home country for at least two years at the conclusion of the J-1 exchange visitor program. Applicants (and their dependents) who wish to change their status to another visa classification, such as the H or L visa classifications, must first obtain a waiver of the two-year foreign residency requirement from the Department of Homeland Security. Additionally, J-1 and J-2 visa holders subject to the two-year residency requirement cannot adjust their status to permanent residence, receive an immigrant visa from a U.S. embassy or consulate, or receive an H, L, or K visa until they obtain a waiver.

F-1 Student Visa

If you are a non-STEM student, that was not selected in the H-1B lottery, you may consider returning to school to further your studies. If you intend on taking a course of study that is more than 18 hours a week, you will need a student visa. If you currently hold a valid non-immigrant visa and you are living in the United States, it is generally easy to change your status from one visa type to the F-1 visa. If you are interested in the Curricular Practical Training Program (CPT) please contact us for more information. Please keep in mind that you must properly maintain your F-1 status while you are on CPT. Failure to do so may jeopardize your ability to apply for the H-1B visa in the future, since the H-1B visa is highly scrutinized. Remember that even if you are selected in the H-1B lottery, USCIS is notorious for handing out complex Requests for Evidence probing into an applicant’s background.

For a complete list of work visas please click here.