My H-1B Was Rejected In The Lottery! What Now?

Close-up detail of American VISA
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By Benjamin Lau

You did everything right. You got into the best school, you got the necessary work experience, you found an employer willing to sponsor you for an H-1B visa, and you filed on April 1. However, despite all your work, your case was not selected as part of this year’s H-1B lottery. Through forces beyond your control, you are now back to square one, wondering whether you must now leave the United States.

But wait! There may still be an alternative visa option available to you within the alphabet soup of U.S. work visas. So, before throwing in the towel and packing your bags, you may want to consider the list of alternative U.S. work visa categories below. One of these alternative visas may offer you the best chance for future employment in the United States – and while the list is not conclusive, it represents the most likely options for you to secure U.S. work authorization.

Note: The below comments are for informational purposes only and are meant to be a very surface level overview of alternatives to the H-1B visa. If you believe that you may qualify for one of the visas, you should consult a qualified U.S. immigration attorney for more specific details.

F-1 – Student Visa
One of the most readily available options for many individuals who are not selected in the annual H-1B visa lottery is to enroll in a new degree program for the Fall or Spring semester. Being admitted to a new degree program may allow a current F-1 visa holder to extend his or her F-1 status, or it may provide an opportunity for someone in another temporary status to transition to F-1 status and remain in the United States for several more years. In many cases, the F-1 status may allow you to obtain part-time or full-time employment authorization while pursuing a new degree program, provided that the employment is compatible with the degree field. You may wish to contact the international student office at your school regarding your options.

The TN visa (or “TN status” for Canadians) is available to citizens of Mexico or Canada who will work within one of sixty (60) listed professional occupational categories. Some relevant TN occupational categories for those working in the video game field include Graphic Designer, Computer Systems Analyst, or Industrial Designer. Most categories require that a person hold at least a Bachelor’s degree in a related field, but some only require relevant work experience.

L-1 – Intracompany Transfer
The L-1 visa is available to individuals who have worked at a parent, subsidiary, or affiliate company abroad and are now transferring to the U.S. office of that company. This visa is only available to those who have worked at the foreign company for at least one (1) year and will be working in either a managerial or “specialized knowledge” position. Therefore, if your U.S. employer has a foreign office where you may be able to work in a professional capacity for at least one year, this may be a path to future employment in the United States.

E-2 – Treaty Investor
The E-2 visa was established to attract foreign investment into the U.S. economy, and it is the most appropriate visa option for foreign individuals looking to start up their own company in the United States, either independently or with the help of additional investors. While the investment threshold is significant, it is not unreasonably high, and it is not uncommon to see recent university graduates bypassing the H-1B all together and pursuing the E-2 visa option instead. In a sense, the E-2 visa is an entrepreneurial visa, available to someone who establishes a new business (or acquires an existing business) and invests capital into that business. It is available to citizens of foreign countries if the U.S. and that foreign country have a reciprocal investment treaty, and while the U.S. does not have treaties with every country, the list of treaty countries is quite long.

It is important to note that the E-2 is not intended to serve as exclusively as a loan out company so that the investor may circumvent direct employment for a different company by simply paying himself through his own company. However, there are a variety of loan out company scenarios where the E-2 visa is appropriate, depending on the nature of the business, the scope of the services, and the potential number of clients. This is something that should be discussed with a qualified immigration attorney.

O-1 – Extraordinary Ability
The O-1 visa is available to individuals who have established a level of “sustained national or international success” in their field of endeavor. This is generally demonstrated through awards, publications, conference presentations, and reference letters from experts in the field. If you have worked with someone who is currently in the US on an O-1 visa, there is the possibility that you may qualify for an O-2 “essential support personnel” visa if you will continue to work with the O-1 visa holder in the United States. Some common jobs within the O-1 category include Concept Artists, Game Designers, Producers, Athletes, Graphic Designers, and Character Artists.

P-1 – Internationally Recognize Athlete
The P-1 visa is available to internationally recognized athletes and their support staff (coaches, trainers, etc.) who are coming to the United States to compete and/or train. Evidence that an athlete is “internationally recognized” is generally demonstrated through awards, international rankings, letters from members of the sports media, or evidence that the person has participated in the international competition with a national team. The P-1 visa has become one of the most popular and appropriate visas for professionals working in the Esports industry.

I – Foreign Information Media Professionals
The I visa (often called the “I-1” visa) is a visa that is available to representatives of foreign information media outlets (news media, sports broadcasting, documentary film and television production, print media, etc.), who are coming to the United States to produce, author, or assist in the production of information media content to be distributed by the foreign information media distributor. In short, the I visa is commonly identified as the “foreign journalist” visa, but it is not limited solely to broadcast and print journalists. Instead, the I visa is often the most appropriate visa for a variety of professions associated with the complete production of the information media content – including production crews, sports and Esports broadcasting, and a variety of ancillary jobs. In the world of eSports, the I visa has become an increasingly popular U.S. work visa.

H-1B1 – Singapore/Chilean Free Trade Specialty Occupation
Citizens of Singapore or Chile may qualify for an H-1B1 visa. The H-1B1 visa was created exclusively for citizens of Singapore and Chile and allots an annual quota of 6,800 H-1B1 visa numbers to citizens of those countries. The H-1B1 visa is not part of the annual H-1B visa quota but is a separate visa category with a variety of similarities to the standard H-1B visa, including the requirement that the foreign national be employed in a “specialty occupation”, which requires at least a Bachelor’s degree. Additionally, one of the primary differences between the H-1B1 and the H-1B is that the H-1B 1 visa may only be issued for 18 months initially, and extended in one (1) year increments.

E-3 – Australian Specialty Occupation
In many ways, the E-3 visa is very similar to the H-1B1 visa, except that it is exclusively available to citizens of Australia. The E-3 visa allows for citizens of Australia to work in a specialty occupation in the United States, provided they hold at least a bachelor’s degree. Much like the H-1B1 visa, the E-3 visa has numerous similarities to the H-1B visa. The primary difference between the E-3 and the H-1B is that the E-3 may only be granted for up to 2 years at a time, but it may be extended indefinitely.

The list of U.S. work visas above is not an exclusive list and is merely an overview of some of the more common visa options worth considering. While failing to secure an H-1B visa through the annual lottery is frustrating, it does not necessarily mean that you have reached the end of the line. Navigating the nuances of the various alternative U.S. work visas is a complex undertaking, and we strongly encourage you to engage the services of a qualified U.S. immigration attorney to guide you in this process.

This article originally appeared on 80 level

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