What To Do if Your Employee Wasn’t Selected in the H-1B Lottery

Earlier this year, U.S. Citizenship and Immigration Services announced the completion of the FY2022 H-1B Cap-Subject lottery selection process, and after two subsequent surprise lottery selections, it is likely they have acquired enough selections to guarantee a full queue. However, what can you do if your employee was not among those selected? Luckily, even if your employee wasn’t among those lucky enough to be selected for an H-1B visa, there are several options remaining to ensure your business can hire valuable foreign national employees.

Optional Practical Training

Optional Practical Training (OPT) allows foreign national college students to gain work experience in their field of study. This provides these students with the opportunity to receive work authorization for twelve months for every academic level of authorization they complete. For example, a student that has completed a Bachelor’s Degree in Marketing would be eligible to work in a related position for up to 24 months. This must be approved by a college official, and then the student must acquire an Employment Authorization Card.


University students that complete degrees in “STEM” fields qualify for a 24-month OPT extension. This allows those that achieve a degree in a stem field to take advantage of their original OPT time and then receive and then apply for a 24 month STEM OPT extension.

This is one of the most widely used alternatives to H-1B visas, and the best part about the STEM OPT is that there is a significant overlap between STEM OPT and H-1B qualifying positions. This means that an employer can hire an OPT student and apply for an H-1B visa several times before the OPT and STEM OPT extension expires, giving an employer several chances for their petition to be selected.

TN Visas

For hiring a Mexican or Canadian national in a variety of professional positions, the TN visa is a great option. These positions include engineers, management consultants, computer systems analysts, and accountants. Generally, in order to qualify for TN Visas, an individual must possess a Bachelor’s degree or equivalent qualification for their field. These visas are valid for a three-year period with indefinite options for renewal.

Spousal EAD

One option that employers shouldn’t overlook when considering their options is looking to the spouses of any current foreign national employees. For certain categories of visa holders, their spouses are eligible to receive an EAD. This includes L-2 and certain H-4 spouses who, in most cases, will pay for EADs themselves, which is a benefit for employers as well.

Employer Takeaways

The H-1B visa is certainly the first method that is likely to come to mind for most employers when it comes to hiring foreign national employees. However, it is important to keep in mind that there are several more options available to acquire the skilled foreign labor you need. Keep in mind, though, that this often involves complex documentation requirements, particularly for completing the Form I-9. The best way to deal with this is to use an electronic I-9 management tool that can guide hiring personnel through the process every step of the way.