So Your Employee Wasn’t Selected in the H-1B Lottery… Now What?

Burr & Forman

Burr & Forman

On March 30, 2021, USCIS announced completion of the initial FY2022 H-1B Cap-Subject lottery selection process.  Beginning April 1st, those selected were eligible to start filing.  But what if your employee was not selected? Even without an H-1B selection, there are numerous options still available so businesses can continue to employ valuable foreign national workers.

Optional Practical Training (“OPT”)

Foreign national college students seeking to gain practical experience in their field of study have the opportunity to apply for twelve months of work authorization in the form of OPT at each academic level they complete.  For example, a student who completes a Bachelor’s Degree in Finance may apply for OPT through their university and obtain work authorization to work for a local bank for twelve months after graduation.  Students participate in OPT after completion of a degree, although current students can also obtain work authorization to engage in practical training through a similar program known as curricular practical training (“CPT”).  In either instance, the appropriate college official must approve OPT/CPT and the student must obtain an Employment Authorization Card (“EAD”).


University students that complete degrees in “STEM” fields (Science, Technology, Engineering, and Math) may apply for an additional 24-month OPT extension.  An individual with a  Master’s Degree in Mechanical Engineering can therefore use twelve months of their initial OPT and then apply for a STEM OPT extension, allowing for a total work authorization period of thirty-six months.  Employers regularly use the STEM extension as an opportunity to get several “bites” at the H-1B lottery apple, since there is significant overlap between the STEM fields and individuals who are eligible for an H-1B visa.  Provided they apply before expiration of OPT and their EAD, STEM OPT students can work with an expired OPT for up to 180 days while their extension request is pending.  The STEM extension is a valuable strategy regularly utilized by U.S. employers seeking to employ foreign nationals.

TN Visas

For employers seeking to employ Canadian or Mexican nationals in many professional occupations, the TN visa is a noteworthy option.  While the transition from NAFTA to the USMCA resulted in many changes, the TN visa program changed very little.  Positions that qualify for a TN visa include engineers, accountants, computer systems analysts, and management consultants, among others.  Similar to H-1Bs, TN applicants are generally required to have a Bachelor’s Degree or equivalent in their professional field, although there are limited exceptions.  Canadians are eligible to apply for TN status directly at the border crossing, while Mexican nationals are required to apply at a U.S. Consulate or Embassy.  TN status has a three-year validity period and can be renewed indefinitely.

O Visas

An option available to a select few is the O-1 visa.  To be eligible for an O-1, the beneficiary must have an extraordinary ability with sustained national or international acclaim, or a record of extraordinary achievement in the motion picture and television industry.  Extraordinary ability in the fields of science, education, business or athletics requires a level of expertise indicating the beneficiary is one of a small percentage who have arisen to the very top of their field. O-1 status is granted for an initial period of three years.  While the O-1 has a high threshold, it can be beneficial to those who qualify because it can be extended indefinitely in one-year increments.

Spousal EAD

When considering visa and work authorization options, employers should not overlook a foreign national worker’s marital status.  Marriage to an individual in certain visa categories renders them eligible for an EAD.  For example, all L-2 spouses (spouses of L-1 status holders) are eligible for an EAD.  Certain H-4 spouses are also eligible for an EAD.  Costs associated with obtaining so-called “Spousal EADs” are also typically paid by the worker, which provides an additional benefit to employers.

While it may be common and highly publicized, the H-1B is only one of numerous opportunities for foreign nationals to work temporarily in the United States.  

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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