Alternative Options After H-1B Cap

April 4, 2025

On March 31, 2025, USCIS announced that it received enough electronic registrations for unique beneficiaries during the initial registration period to reach the fiscal year 2026 H-1B cap and has notified employers of the selection results.

So, what are your options if you have not been selected in this year’s lottery process? Although no new cap-subject H-1B registrations may be submitted, employers and foreign nationals may be able to take advantage of other visa categories, as follows:

• Cap-exempt H-1B: Some H-1B petitions are exempt from the cap by virtue of the type of petitioner or the type of work being done. These are petitions filed on behalf of a worker who is or will be employed at an institution of higher education or a related or affiliated nonprofit entity, and petitions filed on behalf of a worker who is or will be employed at a nonprofit research organization or a governmental research organization. Petitions for J-1 international medical graduates who have received waivers under the Conrad 30 program are also exempt from the cap.

• B-1 – The B-1 category allows a foreign national to enter the United States to participate in business activities on behalf of a foreign employer. Generally, a person in B-1 status may not engage in productive employment in the United States.  Allowable B-1 activities include consulting/meeting with business associates, attending a professional conference, participating in training, or negotiating contracts.

• E-3 – The E-3 category is limited to nationals of Australia and is capped at 10,500 per fiscal year, although that quota has never been filled. The substantive requirements of the E-3 are very similar to the H-1B category.  There must be an offer of employment in a “specialty occupation” and the individual must possess a bachelor’s degree or the equivalent in a field related to the employment.

• TN – The United States-Mexico-Canada Agreement (USMCA) between the U.S., Canada, and Mexico allows for simplified immigration travel between and among the three countries. For purposes of employment in the U.S., citizens of Canada and Mexico who are coming to the U.S. to work in certain professions may be eligible to enter in TN status. To qualify for TN status, the foreign national must be a citizen of Canada or Mexico, must have a prearranged offer of employment in the U.S., and must meet the educational/experience qualifications for the occupation, which are defined in the USMCA agreement. In addition, individuals must intend to work in one of the occupations listed in the USMCA agreement.

• E-1 / E-2 – The E-1/E-2 categories require that the person be a national of a country with which the U.S. has an appropriate treaty of commerce and that the prospective employer is majority owned by nationals of that same treaty country or by corporate entities having the “nationality” of the treaty country. These owners/corporate entities must either have made a “substantial” investment in the U.S. or there must be “substantial” trade between the U.S. and the treaty country.  In addition, the offered position must be executive or supervisory or involve “essential skills.”

• F-1 – The F-1 student visa category permits employment under various circumstances, most commonly through Curricular Practical Training (CPT) or Optional Practical Training (OPT). There is a 12-month limit on OPT unless the person has a designated STEM (Science, Technology, Engineering, or Mathematics) degree and the employer participates in the E-Verify employment verification program, in which case an additional 24 months of post-graduation OPT is available.

• L-1 – The L-1 visa category allows U.S. employers to transfer employees of related overseas entities to work temporarily in the U.S. The U.S. and foreign entities must have a qualifying corporate relationship (parent/subsidiary, affiliate, etc.), the employee to be transferred must have worked for the related entity overseas for at least one year, and the offered position must be managerial/executive or must involve “specialized knowledge.”

• O-1 – The O-1 category is available for persons of extraordinary ability who can document sustained national or international acclaim in their field.

Finally, there are various visa categories available for training that might be useful in certain circumstances.

Please contact us to schedule a consultation with one of our attorneys if you wish to learn more about your potential eligibility for one of these options.

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TAGS: H-1B, H-1B Cap, H-1B Cap Lottery