H-1B Lottery Backup Plans
Your Ultimate Guide for Considering Alternatives to the H-1B Lottery.
Every year, thousands of international students & foreign nationals fail the H-1B lottery and are forced to consider their options. If this is you, we understand that this is a highly stressful and complicated situation to navigate.
To help you with this, we’ve compiled a comprehensive list of all the pathways you can take, and the important tradeoffs you should consider for each option.
Disclaimer: Every case is unique, and we highly recommend that you consult with your immigration attorney to consider what is the best path for you.
🟢 = Positives / Benefits
🟡 = Neutral / Be Aware
🔴 = Negatives / Caution
Concurrent cap-exempt H-1B | O-1 visa | Cap-exempt H-1B | Day 1 CPT | H4 + EAD | L-1 | B1/B2 | |
|---|---|---|---|---|---|---|---|
Availability | 🟢 Part-time cap-exempt employment allows you to stay with for-profit employer without the lottery. | 🟡 Special visa class for individuals with extraordinary ability in their field. | 🟡 Lottery-free H-1B visa by being employed directly by a cap-exempt employer. | 🟢 Risky, but available. Enroll in universities that offer CPT on the first day of student enrollment. | 🔴 Available only if you have a spouse who is an H-1B holder, and has an I-140 approved. | 🔴 Transfer to foreign branch of multinational company for a year before returning. | 🟡 Change of status to a visitor visa while looking for other options. |
Green Card Implications | 🟢 Allows you to transition more seamlessly to a Green Card, since it is a dual intent visa. | 🟢 Allows you to transition to EB-1 Green Card (priority category). | 🟢 Allows you to transition more seamlessly to a Green Card, since it is a dual intent visa. | 🔴 Visa is not dual intent. Risk of Green Card complications, and is highly scrutinized by USCIS. | 🟡 Follows the H-1B holder’s Green Card process. | 🟢 Can lead to EB-1C Green Card for multinational managers or executives. | 🔴 Does not provide a path to a Green Card. Transitioning to a different visa category from B1/B2 can be challenging. |
Ability to Travel out of Country | 🟢 Dual intent visa. Allows you to freely travel in/out of the country with minimal risk. | 🟢 Can freely travel in/out of the country with minimal risk. | 🟢 Dual intent visa. Allows you to freely travel in/out of the country with minimal risk. | 🔴 Travel in/out of the country on CPT is risky. No traveling if green card is being processed. | 🟢 Can freely travel in/out of the country with minimal risk. | 🟢 Can freely travel in/out of the country with minimal risk. | 🟡 Travel is allowed but can be scrutinized and may impact future visa applications. |
Processing Timeline | 🟢 8-12 weeks for visa petitioning. | 🟢 2-4 months, faster if using premium processing. | 🟢 2-6 months, faster if using premium processing. | 🟡 Only available during the university’s enrollment periods. | 🟡 4-9 months. Faster if using premium processing. | 🟡 3-6 months. Faster if using premium processing. | 🟡 8-12 months. Varies greatly by U.S. consulate. |
Time it Affords You | 🟢 6 years. Same as regular H-1B: 3 years, with the potential to extend up to 6 years. | 🟢 Initially 3 years, renewable indefinitely in 1-year increments. | 🟢 6 years. Same as regular H-1B: 3 years, with the potential to extend up to 6 years. | 🟡 Available as long as enrolled in the program, typically 2 years. | 🟢 Valid as long as H-1B holder maintains status and EAD is renewed. | 🟢 Initially 1-3 years, extendable up to 7 years (L-1A) or 5 years (L-1B). | 🟡 Typically valid for up to 6 months, with possible extensions. |
Other Factors | 🟡 Company/private benefactor must be willing to fund the costs of The Build Fellowship. | 🟡 Requires substantial evidence of extraordinary ability. | 🟡 Potentially lower salary; Industries limited to certain non-profits; | 🔴 High incidence of fraud and RFEs. Require a certain number of in-person classes. | 🟢 Benefit of having no restrictions to industries or employer types. | 🟡 Requires employment with the company abroad. | 🟡 Intended for short-term visits; |
Visa Pathway Trade-Offs
Assuming that you are ineligible for the O-1, L-1, or H4 + EAD pathways, the most common pathway is to pursue Concurrent Cap-Exempt H-1B, Cap-Exempt H-1B, or Day 1 CPT. The trade-offs between these three options general boil down to progression to immigrant status, ability to travel, financial commitment, and whether an immediate solution is needed.
Concurrent
Cap-exempt
H-1B
via The Build Fellowship
Dual-Intent
Travel Freely
Financial Cost
Immediate Availability
Requires Sponsor*
Part-time cap-exempt employment + full-time employment without the lottery.
This pathway provides the widest benefits, such as being dual-intent, ability to freely travel in & out of the country, doesn't limit your industry, and is compliant with USCIS. It was traditionally challenging to execute, but it has recently been made widely accessible by The Build Fellowship.
The important benefit of this route is that the H-1B is dual-intent - granting you 'immigrant' status, which means you no longer have to provide proof of intent to return to home country. It allows you to travel with minimal risk, and less scrutiny by USCIS.
*Requires employer or private benefactor (e.g family member) who can fund The Build Fellowship fees.
Cap-Exempt
H-1B
via Sojon Database
Dual-Intent
Travel Freely
No Cost
Low Availability
Limited Industries
Employment at a H-1B cap-exempt institution that is willing to sponsor.
This provides a long-term, stable, and flexible pathway for your visa status. It doesn't have a cost, but often limits you to certain non-profit & higher education employers, which some believe may limit career progression. Salary is also often slightly lower as a result, but will minimally be above the prevailing wage.
Finally, there is no immediate way to obtain this visa. If you want to pursue this option, considerable time will be needed to apply, interview, and get hired at the right employer. We recommend this route if you have a lot of time left in your visa status, and are in no rush for an immediate solution.
Day 1 CPT
Not Dual-Intent
Travel Risk
Affordable
Immediate Availability
USCIS Flag Risk
Study at a university that offers CPT on the first day of the academic program.
Day 1 CPT schools provides an immediate, relatively low-cost path if you did not get the H-1B lottery. There are affordable masters programs that offer Curricular Practical Training (CPT) from the first day of school, allowing you to work while you further your studies in the US.
While there are legitimate programs out there, caution should be exercised when pursuing this path. USCIS has historically viewed transitioning from OPT back to CPT as an abuse of F-1 status, which may impact future visa applications (e.g H-1B, Green Card). There is also controversy and instances of misuse of the system, which has led to cases of fraud and deportation. Most immigration attorneys do not recommend enrolling in such programs.
It's also important to note that unlike the H-1B, this is not a dual-intent visa, and traveling in/out of the country is risky. If you are undergoing the green card process, you cannot travel at all, or may be stopped at the port of entry. Nonetheless, this is a popular and viable path if the risks are carefully accounted for.
Which Should You Choose?
Generally, if your employer can invest financial resources, or you have a private benefactor (e.g family member), concurrent cap-exempt H-1B via The Build Fellowship is likely your best option. If salary, industry, and career progression is not as important to you, and you have time before your visa expires, finding a H-1B cap-exempt employer might be a good long-term decision. Finally, if you need an affordable and immediate option, and are willing to take on the immigration risks associated with Day 1 CPT programs, you may consider finding a legitimate and accredited program.