My H-1B Was Not Selected For Processing - What Are My Options?


Each fiscal year, USCIS selects a total of 85,000 H-1B petitions, including 20,000 reserved for individuals with U.S. Master’s degrees or higher, for acceptance. Once notices of receipt confirm a petition’s acceptance, selected individuals will be able to breathe a sigh of relief that they have secured continuing work authorization in the U.S. For those individuals who were not selected, they may have options for continued employment in the U.S.


OPT STEM Extension


Optional Practical Training (OPT) enables students in F-1 status who have been enrolled in school for at least one year to work for 12 months in a job related to their area of study. Students can pursue Pre-Completion OPT, working no more than 20 hours per week, or Post-Completion OPT, for full time employment after earning a degree. OPT requires an Employment Authorization Document (EAD) from USCIS for work authorization. Students currently engaged in Post-Completion OPT who obtained a degree in a Science, Technology, Engineering, or Math (STEM) field are eligible for a 17 month extension of their OPT if their employer is enrolled in E-Verify.


F-1students seeking Post-Completion OPT may apply up to 90 days but no later than 60 days before their date of graduation. Additionally, they must apply for an EAD within 30 days of receiving approval from their school.


Cap Exempt H-1Bs


Candidates for employment at institutes of higher education or non-profit organizations are not subject to cap limitations. For-profit companies may be able to hire individuals to work at universities or non-profits if their work is for the mutual benefit of both entities.


H-1B1, E-3 and TN


Citizens of Chile, Singapore, Australia, Canada and Mexico qualify for a different work authorized status that is similar to H-1B.


L-2, E-2, E-3 and H-4 EADs


Spouses in L-2, E-2 or E-3 status qualify for EAD.

Additionally, beginning May 26, 2015, those in H-4 status (spouses of H-1B employees) qualify for EAD, provided the H-1B spouse: (1) has an approved I-140 or (2) has been granted an H-1B extension under the American Competitiveness in the Twenty-first Century Act.


Other Non-Immigrant Status


Candidates may qualify for other non-immigrant status, such as L-1 (for executives, managers, or those with specialized knowledge who have been employed for one year at a parent, subsidiary, branch or affiliate entity within the last three years), and O-1 (for individuals with extraordinary achievements). Also, individuals from a treaty county who is engaged in commercial trade with the U.S., making a substantial investment in a U.S. business, or assuming an essential or executive position at a U.S. company that a foreign company invested in, may be able to obtain an E-1 or E-2 visa.


Immigrant Petition


Lastly, for individuals maintaining valid status and who qualify for EB-1A (Extraordinary Ability), EB-1B (Outstanding Professor or Researcher), or EB-1C (Executive or Manger) visa classification (for which priority dates are current), concurrent filing of an I-140 Nonimmigrant Petition and I-485 Adjustment of Status application would provide both legal status and the ability to apply for an EAD card until receipt of a green card.

For more information on your options after cap, please contact ILG.