What are your options if not selected in the H-1B Lottery in 2022?

The H-1B Visa random selection process, or as it is colloquially known – the visa lottery, has been a subject of a hot debate for many years. Each year, hundreds of thousands of applicants keep their fingers crossed in hope of being selected. Unfortunately, in the end, most of them will leave empty-handed and thus will be forced to look for alternative solutions. 

In this article we will:

• go into detail on the H-1B Visa and the reasoning behind the lottery, 
• provide you with key statistics surrounding this subject, 
• list out other visa types available to you if it turns out that you were not selected for the H-1B. 

Who is the H-1B Visa for and why is it granted through random selection?

The H-1B Visa, according to the U.S. Citizenship and Immigration Services (USCIS) description, applies to “people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.” What does it mean in practice? 

1. Specialty occupation: you need to work in a profession requiring highly specialized knowledge where a degree of higher education or other types of license, registration, or certification is mandatory either due to the complexity of the job, requirements of the employer, or the prevalence of such degrees in that industry.
2. DOD Research and Development: you must hold a degree of higher education in the field or a foreign equivalent, have specialized training, progressively responsible experience in the specialty, or hold an unrestricted state license, registration, or certification that authorized you to perform your duties. You also need to attach a verification letter from the DOD project manager, a general description of your duties as well as a statement listing the names of noncitizens currently employed on the project and those whose employment ended within the past year.
3. Fashion Model: you must be a fashion model of distinguished merit and ability. 

The H-1B Lottery is held due to a standard cap of 85,000 slots for this visa type, with 65,000 open to every eligible petitioner and 20,000 slots reserved for applicants who hold a master’s degree. In recent years, the number of applicants vastly outnumbers the available slots, ranging anywhere from 124,000 petitions filed in FY 2014 to an astounding 308,613 petitions in FY 2022. Meanwhile, the percentage chosen over the standard cap of 85,000 is 15-23%. This means that up to 80% of the applications will end up being rejected.

What are your options if you are not selected in the lottery? 

If you are one of the unlucky people with an H-1B lottery not selected status, fortunately, there are multiple alternatives available:

O-1 Visa

Passright’s specialty – this O-1 visa is tailored towards people who have demonstrated extraordinary ability and acquired national or international acclaim in their field. In effect, you need to be at the very top of your field, be it science, education, business, or athletics. 

There are several requirements you need to meet if you want to apply for an O-1 Visa. First, the petition needs to be filed by a U.S. employer or a U.S. agent on your behalf. Secondly, the petition needs to include a written advisory opinion from a peer group or experts in your field. You will also need to attach a written contract and the U.S.-based employer who is filing your petition. Moreover, your extraordinary ability in a given field needs to be well documented and evidenced by meeting at least 3 out of 8 evidentiary criteria. 

Once the application is submitted, standard processing by USCIS carries a fee of $460 and takes about two to three months before a decision is made. There is an option of premium processing where you are guaranteed a response within 15 days. You can receive three types of responses: approval, denial, or RFE – Request for Further Evidence. The latter means that you are given an additional deadline to provide supplementary documentation that will convince the USCIS that you do meet the argued criteria. 

Most importantly, the petition for an O-1 Visa can be filed at any time and there is no cap for applications approved within each year. As long as you meet the USCIS’s requirements, the visa will be granted and will allow you to stay and work in the United States for three years.  

OPT STEM

Optional Practical Training Extension for STEM Students is available to students on an F-1 Visa who receive degrees in science, technology, engineering, or mathematics. Through this type of Visa, these students can apply for a 24-month extension so that they can complete their post-completion optional practical training (OPT). 

In order to apply, you need to be enrolled in an OPT and have a degree of higher education obtained from a school that is accredited by a U.S. government-recognized accrediting agency and certified by the Student and Exchange Visitor Program (SEVP). Generally, each student is allowed to be granted one such extension, however under certain conditions, namely earning another STEM degree, they may be granted a second extension.

E-2

Also called the Treaty Investor Visa. To qualify for an E-2, you need to be a national of a country with which the U.S. maintains a treaty of commerce and navigation (currently around 70 countries fall under that category). On top of this, you need to either be in the process of actively investing a substantial amount of capital in an American enterprise or be in the process of doing so. On top of this, the development of this business needs to be the sole reason for your stay in the U.S.

L-1

This Visa type is aimed at temporary workers who work in managerial positions (L-1A) or possess specialized knowledge (L-1B). It can be used either for intracompany transfers or to establish a new office. To qualify for either one of these visa types, you need to have a record of working for a qualifying organization abroad for one continuous year within three years of being admitted to the U.S. However, for L-1A you need to work for a branch of the same employer. For L-1B you must provide your specialized knowledge to a branch of the same employer. 

Conclusion

H-1B is a particularly stressful process due to an intense level of uncertainty caused by the lottery system. Every year there are a huge number of H-1B applications that do not get selected in the lottery process. Although many foreign nationals rely on the H-1B status to temporarily live and work in the United States, there are many alternative options to consider if the H-1B is not available.

Please feel free to contact us for a free consultation and evaluation of your options. We are also available to conduct a review of your professional profile, including all of your past achievements, contributions, and accolades, to decide which visa type suits you best. We are looking forward to hearing from you!