What to Do If You Are Not Selected in the H-1B Lottery? (Part 2)
Attorneys:Attorney Jeff Zhengquan Xie,Attorney Jiarui Yin,Attorney Qian Zhao,Attorney Haochun Ling, Xiao Xiang
Picking up where we left off in the previous article “What to Do If You Are Not Selected in the H-1B Lottery? (Part 1)”:
6. International students of other nationalities do not have to fixate solely on H-1B visa quotas.
Your own nationality or that of your spouse may open up unexpected new options. For example:
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Those born in Taiwan, Hong Kong, or Macao may apply for E-1/E-2 Treaty Trader or Treaty Investor visas;
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Canadian nationals may apply for TN/TD status/visas;
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Australian nationals may apply for E-3 work visas;
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Singaporean or Chilean nationals may apply for the specially reserved H-1B1 status/visas;
And so on.
Determining the optimal status or visa for an individual requires a case-by-case analysis. For those with special circumstances, feel free to contact us for a free assessment.
7. Seek employment opportunities at private companies that hold research contracts with U.S. federal government agencies.
If the position requires assignment to a government agency to conduct research work, H-1B visa applications for such roles are not subject to H-1B quota limitations.
8. Ask your employer to enter into a contractual partnership with an institution of higher education or research organization. The educational/research institution will formally hire you, file the H-1B application on your behalf, and then second you back to work at your original employer.
However, the specific implementation must follow appropriate legal procedures to ensure compliance with all laws and regulations.
9. If your U.S. employer has affiliated companies in China or other countries, you may first accept a posting to work overseas.
Wait until H-1B quotas become available, then have your U.S. employer file an H-1B application in the U.S., after which you can apply for a visa to return to the U.S. Before taking this step, it is crucial to negotiate and confirm the terms and arrangements with your employer.
If the company qualifies as a multinational enterprise, having worked overseas for at least one year makes you eligible to apply for an L-1 visa to return to work in the U.S. The L-1 visa is not subject to quota restrictions, though its application requirements are significantly more complex than those for an H-1B visa. If you do not meet the L-1 visa requirements, this approach will effectively mean leaving the U.S. or returning to your home country to work.
10. Launch your own startup business in the U.S.
This option is conditional and only suitable for certain international students—especially those who obtained research funding from government or non-governmental organizations during their studies. If you fall into this category, please feel free to contact us.
11. Simply return to your home country to work for the time being.
While this is not the ideal solution, it is far better than losing your legal status in the U.S. Many overseas returnees are able to achieve accomplishments or social status that would not have been possible abroad. If you find the situation unsatisfactory or unadaptable, you can always return to the U.S. later.
In fact, many people have successfully returned to work in the U.S. by applying for an H-1B visa again. H-1B visa applications do not assess immigrant intent. As long as you have no negative immigration records in the U.S. and your U.S. employer and job opportunity are legitimate, re-applying for an H-1B visa should not be a problem (note: extra caution is required for positions involving sensitive fields of study).
If returning to your home country allows you to better utilize your talents and develop your career, this can be a viable path forward. Your future trajectory will depend on your own capabilities and efforts.
When the time is right later and you secure a job offer in the U.S.—provided visa quotas are not an issue—feel free to contact us at any time, and we can assist you with your H-1B visa application to facilitate your return to the U.S.
12. Work with your friends, family, and employer to actively lobby your local U.S. Senators and Members of Congress, sharing your personal experiences.
Only by mobilizing their initiative can we work toward solving the H-1B quota shortage issue—whether by advocating for increased quotas or urging the government to adjust the duration of Optional Practical Training (OPT), such as extending the internship period for U.S. university graduates with master’s degrees or higher. While lobbying the government to revise existing rules is not a quick fix, collective efforts will create better opportunities and conditions for both yourself and future international students. We hope that future immigration reforms will fundamentally resolve the H-1B quota problem.
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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