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H-1B Quota Has Been Reached, Now What?

US Citizenship and Immigration Services (USCIS) announced on May 3 that all data entry for FY 2018 H-1B cap-subject petitions had been completed. Only 65,000 applicants for a general H-1B nonimmigrant visa would be accepted for this fiscal year through the computer-generated random selection process, or lottery. For those not selected for an H-1B visa, the USCIS will reject and return all unselected petitions with their filing fees.


What do you do if you were not selected for H-1B lottery?

If you have not been selected for H-1B lottery, there are some alternative visa options available to work in the US. There are:


TN Visa

A TN visa is available to citizens of Mexico or Canada. A TN Visa holds some similar attributes to that of an H-1B Visa in that the TN Visa holder may work for up to three years at a time. A unique feature that differentiates a TN Visa from an H-1B Visa is that a TN Visa may be renewed indefinitely.

In order to be eligible for a TN Visa,

A petitioner must have a profession that qualifies under the NAFTA regulations;

The position that the petitioner is applying for in the United States must require a NAFTA professional;

The petitioner must prearrange a full-time or part-time job with a U.S. employer; and

The petitioner must posses the necessary qualifications to practice the profession for which they are applying.

While obtaining a TN Visa may seem like the appropriate visa to obtain because it is eligible for renewal indefinitely, if a border official feels that the petitioner is using it as a de facto green card, they may deny further renewals.



An L-Visa, like an H-1B Visa, is used by employers who wish to obtain temporary work visas for their employees. There are many similarities and differences between an H-1B Visa and an L-Visa.

Both H-1B Visas and L-Visas allow dual intent. This means that a temporary worker does not have to show ties to their home country and if they decide to file a green card, they will not be jeopardizing their visa status nor will they be harming future visa extension opportunities.

To obtain an L-Visa, the beneficiary must have worked for an affiliate company or branch of the company they seek to work for in the United States for one year prior to applying. They must have worked as a manager, executive or someone with special knowledge.


O-1 Visa

An O-1 Visa is for people who have extraordinary abilities in the sciences, arts, education, business, or athletics, or have shown a record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements.

When applying for an O-1 Visa, you must demonstrate your extraordinary ability by compiling documents that display your achievements.


Cap-Exempt H-1B’s

A Cap-Exempt H-1B is like a normal H-1B Visa but people obtaining the fall into one of the three following categories:

Higher education,

Non-profit organization associated with a higher education institution, or

Non-profit research or government organization

These categories are not as simple as they appear. There are many requirements that one must meet to qualify for one of these categories. For this reason, it is highly recommended that you see an attorney.


E-2 Visas

An E-2 Visa is a nonimmigrant visa that allows a national of a treaty country to be admitted to the United States when investing a capital in a U. S. business. Please click here for a full list of Treaty Countries.

In order to obtain an E-2 Visa, the petitioner must place substantial capital at risk with the objective of generating a profit. This means that the capital that has been invested is subject to partial or total loss if the investment fails.

Since the process to apply for an E-2 Visa differs depending on if you are applying from within the country or outside, we strongly suggest you consult with an attorney if you decide to proceed.


EB-5 Immigrant Investor Program

The EB-5 Immigrant Investor Program is a program for entrepreneurs and their spouses and unmarried children under the age of 21. The requirements for this program is that the petitioner make the necessary investment in a commercial enterprise in the United States and also plan to create or preserve ten permanent full-time jobs for qualified U.S. workers.

There are many different requirements for petitioners applying for the EB-5 Immigrant Investor Program. Due to this, we highly recommend that you consult with an attorney before applying for this program.

For those who were not selected for the H-1B lottery, there are still other options available. To discuss the options listed above, contact the Law Offices of Sweta Khandelwal. Attorney Khandelwal has over 10 years experience with immigration law and is located in the heart of Silicon Valley.

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

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