What to Do If You Are Not Selected in the H-1B Lottery? (Part 1)
Attorneys:Attorney Jeff Zhengquan Xie,Attorney Jiarui Yin,Attorney Qian Zhao,Attorney Haochun Ling, Xiao Xiang
In 2021, U.S. Citizenship and Immigration Services (USCIS) received a total of 308,613 H-1B lottery applications. 131,924 lucky applicants were selected for the FY 2022 H-1B quotas, even though the actual number of H-1B visas available was only 85,000.
In 2022, USCIS received 483,927 H-1B lottery applications. 127,600 applicants were selected for the FY 2023 H-1B quotas, with the official cap remaining at 85,000 visas.
In 2023, USCIS received as many as 780,884 H-1B lottery applications. Only 188,400 applicants were selected for the FY 2024 H-1B quotas, while the statutory visa cap still stood at 85,000.
The H-1B lottery for FY 2025, conducted in 2024, has largely concluded. Although the official selection data has not yet been released, the annual visa cap remains unchanged at 85,000.
It is reported that the selection rate for this year’s H-1B lottery is still extremely low. However, here is some good news: the selection rate for H-1B lottery applications handled by Xie Zhengquan Law Firm this year reached nearly 34%!
While this figure may seem insignificant compared to the total number of international students seeking H-1B status, we would like to extend our congratulations on behalf of the firm to all the employers and foreign workers who have secured H-1B selections. Moving forward, we will work closely with these U.S. employers and foreign employees to ensure the approval of their selected H-1B petitions.
For applications that have not yet received any notification, USCIS will issue a Non-Selection Notice by the end of the fiscal year. We recommend exploring alternative avenues for legal residence in the U.S. as soon as possible.
Our overarching advice to all clients and readers who were not selected in the lottery is this: even if you fail to secure an H-1B selection, never allow yourself to lose legal status in the U.S.
How can you maintain legal status in the U.S.? Here are our recommendations for your reference:
1. Defer Graduation or Continue Your Studies to Maintain F-1 Student Status
This approach is particularly suitable for international students who have not yet formally graduated or secured employment. As long as you maintain valid legal status, you may still submit an H-1B application when quotas become available, provided you find a suitable job and employer during your F-1 period. There have been news reports in the past about the Department of Homeland Security (DHS) conducting sting operations by setting up "diploma mills" to crack down on fraudulent immigration consultants engaged in document forgery.
If you plan to maintain F-1 status, we urge all student readers to carefully verify the legitimacy of any institution recommended by immigration consultants. Programs that only require payment without mandatory coursework are undoubtedly non-compliant.
As a student, in addition to paying tuition fees, your primary responsibilities include attending classes (even if conducted remotely), taking exams, and completing assignments or research projects.
2. Apply for EB-5 Investment Immigration to Obtain Work Authorization and Travel Documents Quickly
Currently, certain EB-5 investment projects still have available visa quotas, allowing applicants to file concurrent applications—submitting Form I-526E (EB-5 petition) together with Form I-485 (Adjustment of Status). Once Form I-485 is filed and accepted by USCIS, international students no longer need to worry about issues such as H-1B lottery results or finding employment within the 90-day OPT window.
After USCIS accepts your Form I-485 application, you are authorized to reside legally in the U.S. Upon receiving an Employment Authorization Document (EAD), you can accept any employment opportunity in the U.S. A travel document will also allow you to enter and exit the U.S. freely.
Of course, this option is only feasible for international students from families with the necessary financial means, as EB-5 investment immigration requires a minimum investment of $800,000 in a qualifying U.S. project, with verifiable documentation proving the legitimate source of funds.
Interested students are welcome to contact us. We recommend taking immediate action, as the concurrent filing window for EB-5 applications may be closed at any time.
3. Seek Employment Opportunities at Institutions of Higher Education or Nonprofit Research Organizations
H-1B petitions filed by these employers are exempt from the annual visa cap. Eligible positions are not limited to teaching or research roles—other positions such as software engineers or programmers employed by institutions of higher education also qualify for cap-exempt H-1B status.
4. Seek to Change to Another Nonimmigrant Visa Status
The eligibility for changing to another visa status depends on your individual circumstances:
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If you are married and your spouse holds another valid visa status (e.g., F-1 or H-1B), you may apply to change to F-2 or H-4 status before your OPT expires.
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You may also consider changing to J-1 or O-1 status based on your situation. However, Chinese citizens holding J-1 visas are subject to the two-year home-country physical presence requirement, so we recommend avoiding J-1 status whenever possible. The O-1 visa is designed for international students who have achieved extraordinary ability or distinction in their respective fields.
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If you are unable to find employment, unwilling to continue your studies, and have no other viable options (e.g., you are single), you may apply to change to B-2 visitor status before your OPT expires. Changing to B-2 status can extend your stay in the U.S. (up to 6 months in some cases). Recent USCIS regulations permit B-2 visa holders to seek employment in the U.S.—however, this authorization only allows job searching and does not permit actual employment. Do not attempt to use B-2 status as a means to prolong your stay in the U.S. with the intention of changing to another visa status later, as USCIS generally disapproves of applications from visitors who initially enter the U.S. for tourism but subsequently seek to adjust their status. Given the complexity of visa status adjustments, individuals with specific needs may email their details to attorney@xielaw.com for a free assessment.
5. File a Marriage-Based Immigration Application
Naturally, this pathway is only available to international students who meet the relevant criteria. If your boyfriend, girlfriend, or partner is a U.S. citizen or lawful permanent resident (green card holder), you may immediately change your status from F-1 to permanent resident status, which will allow you to work and travel in and out of the U.S. freely.
Same-sex partners of U.S. citizens or lawful permanent residents are also eligible for this pathway. It is critical, however, that the marriage is based on a bona fide relationship, even if the relationship may not last indefinitely.
[To be continued]
To reiterate one final point: Explore all possible options before allowing yourself to lose legal status in the U.S.! When you feel that you have run out of options, do not hesitate to consult the legal team at Xie Zhengquan Law Firm—we may be able to help you find an unexpected way forward.
The above overview is prepared by XIE LAW OFFICES,LLC. to provide legal information to the Chinese community. It is primarily for academic discussion purposes and does not constitute legal advice on specific cases. If you already have legal representation, please consult your own attorney, who is familiar with the details of your case. Clients of Xie & Associates Law Firm, as well as readers who have not yet retained legal counsel, may contact Attorney Xie for specific legal questions. If you wish to reprint this document, please do so in full without any deletions, and clearly indicate the source.
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