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The H-1B visa can be a saving grace for companies looking to hire the best of the best. It allows them to expand from the pool of U.S. applicants and reach out to well-qualified workers from other countries. But what happens if your employee is not selected in the H-1B lottery? Do you have to cut ties with the employee and wish them good luck somewhere else? Of course not.
While the H-1B visa is often the most convenient approach for onsite work, there are still many other options to pursue if an employee doesn’t get selected in the H-1B lottery.
How Does the H-1B Visa Selection Process Work?
The H-1B visa permits foreign workers to come to the U.S. to work in a specialized field. It is intended to help American companies expand their pool of possible workers, especially if they’re struggling to find a qualified candidate within the U.S. They can instead widen their search to applicants from across the globe. The employer plays a large role in the selection, as they must sponsor the individual and organize most of the application process.
Before the lottery occurs, there are a few steps the employer and applicant must follow to submit a complete registration:
- First, the employer submits the Labor Conditions Approval to the Department of Labor (DOL). This document confirms several factors about the position, including pay, location, and working conditions.
- The employer then submits an I-129, the Petition for Nonimmigrant Worker. This petition includes fees, evaluation documents, a resume, employer agreement, a letter of support, and other required documents.
- The applicant completes the visa at their home country’s U.S. embassy or consulate.
In the past, employers submitted paper application packages, which were entered into the online system — but as of the fiscal year (FY) 2021, there is an online tool for registration. After all the paperwork is complete, the application goes into the lottery phase.
Your chances of winning the H-1B lottery depend on the number of applicants and the category for which you qualify. The U.S. government implements a cap on the number of H-1Bs it can approve for each of the two categories. In one category is the regular H-1Bs, for people who hold bachelor’s degrees or sufficient experience in their field. In the other category are those who hold master’s degrees. There are 65,000 spots open for regular applicants and 20,000 spots for those with master’s degrees. However, the master’s recipients still have a higher chance of being selected.
A lottery is conducted whenever the number of applicants is higher than the number of available visas. It is a computer-generated random selection process that pulls the “winners” from a large pool.
One aspect that’s changed with FY 2021 is the way the lottery is conducted. Prior to this year, the master’s pool occurred first. Any unselected master’s applicants then went into the pool with the regular applicants and ran through the selection again. Now, the order is reversed, and the first lottery selects 65,000 recipients out of the entire pool of both master’s and regular applicants. Any master’s applicants who weren’t selected in that round are then put into a new pool for the remaining 20,000 petitions.
Those with master’s degrees typically earn more than those with a bachelor’s degree, so reversing the lotteries helps give H-1Bs to the most skilled and highest-paid workers. It moves the system in a more merit-based direction.
Here’s what the lottery timeline looks like:
- Employers register individuals with United States Citizenship and Immigration Services (USCIS) during the registration period. You get at least two weeks to register candidates.
- The USCIS runs the lottery. The sponsors of selected individuals are then notified and have 90 days to file their petitions. Usually, they are notified on April 1st, unless this falls on a weekend.
- The employer files the H-1B petition similar to before for selected workers.
While you used to receive a rejection letter if not selected, you’ll now see a status update in the registration system to inform applicants of their position.
What to Do If You Don’t Get H-1B
Remember, you aren’t completely out of luck if you and your applicant didn’t get the H-1B lottery. From the individual’s perspective and a business perspective, there are several options.
1. Continue Studies
If your prospective H-1B employee is finishing school and does not get approved, an extension of schooling can allow them to remain in the country, if that is their primary goal. They can work on a master’s degree, second master’s, or Ph.D. and apply again later. It may not help your company in the immediate future, but if you are invested in this person and really want them on your team, encouraging this option can boost their education and allow continued residence in the country while you work on securing employment.
2. Consider Cap-Exempt Work
Some companies have a special status as H-1B cap-exempt employers. This cap exemption applies to organizations that are:
- Higher education institutions
- Non-profit entities related to or affiliated with a higher education institution
- Non-profit or government research organizations
If your company falls under any of these categories, the cap does not apply, and you don’t need to worry about being rejected.
This option is heavily reliant on the applicant’s personal situation. If they are in a position to get married to a U.S. citizen, they can start working on getting their green card. Marriage to another H-1B visa holder would get them a dependent H4 visa. Of course, this cannot be done solely for the purpose of working with your company. It must be a bonafide marriage and will only work out in a few circumstances.
4. Start With a J-1 Visa
If the position you’re trying to fill falls under a certain category, your applicant may qualify for a J-1 visa. Jobs within the program include:
- Professors and research scholars: Three-week to five-year duration with the option to repeat after two years of residency outside the U.S.
- Alien physician: Up to seven years duration unless there is a documented exceptional need.
- Trainees: Three-week to 18-month duration with a maximum of 12 months in hospitality and the option to repeat after two years of residency outside the U.S.
- Specialists: Three-week to 12-month duration with options for repeat participation with no waiting period.
- Teachers: Up to three years with repeat participation after two years of residency outside the U.S.
Note that a J-1 visa can be turned into an H-1B visa.
5. Work in Another Country
If your company has remote work options or locations in the applicant’s home country, you may still be able to employ them. There are some legal hoops to jump through with this regarding taxes and HR, and different countries have different stipulations and requirements. For example, in some areas and industries, it might be hard to classify the person as an independent contractor. Still, it can be an easy, straightforward option for many workers who do not get the option to come to the U.S.
If it isn’t so straightforward, it may be worth moving the employee to another country where your company can employ them. This might be more difficult for the employee since they likely haven’t considered this separate location as a place to move.
This is something we can help with. Globalization Partners is a global professional employer organization (PEO), also known as a co-employer in the U.S. We take care of things like payroll and benefits for employees, as well as navigating local laws and regulations to make international hiring compliant.
How Globalization Partners Helps Avoid Issues
Playing the H-1B lottery is a game of chance. Many businesses don’t want to rely on the H-1B selection process and find themselves turning to a global PEO that can offer a partnership with qualified international employees without the stress of visas and legal issues. With a global PEO like Globalization Partners, the employee can work for you from their home country.
The worker would be under the payroll of the global PEO, simplifying payments and eliminating the need for a change of residency. Depending on the employee’s home country, there can be unique hoops to jump through, but we handle compliance issues, too, along with benefits and other HR responsibilities.
Other reasons that companies work with Globalization Partners include:
Handling benefits: Working with benefit providers in another country can be difficult, to say the least, but it can make your company more competitive to attract the best employees. We’ll take care of arranging benefits in other countries.
In-house solutions: We have real experts located in-country to help answer your questions and solve problems.
Expansion: If you want to expand your business further into other countries, we can help with that, too, and assist with finding talent and extending your international reach.
Contact Globalization Partners for More Information
An H-1B denial is not the end of the hiring process for international workers. It may even kickstart a new method of work that allows the employee to stay in their country of residency and still become a long-term partner. Working with Globalization Partners is a great solution for businesses of all sizes looking to expand to other countries. We can ease the difficulty of compliance, so you and your employee can get to work faster.