On March 31, 2025, U.S. Citizenship and Immigration Services (USCIS) announced that it had received enough electronic registrations during the initial registration period for Fiscal Year (FY) 2026. USCIS has subsequently released selection and non-selection notices to all registrants.
The H-1B visa is undoubtedly one of the most popular nonimmigrant (temporary) visa options due to its allowance for portability and pathway to lawful permanent residence. However, only 85,000 H-1B's are available every year and this poses a barrier for many foreign nationals who are unable to obtain an H-1B in the random lottery system.
Those not selected in the FY2026 lottery need not necessarily fret yet – based on their background and area of intended employment, there are other options to examine to continue to live and/or work in the U.S.
One alternative for individuals not selected in the H-1B lottery is seeking employment with a cap-exempt organization. H-1B petitions filed by institutions of higher education, non-profit entities affiliated with institutions of higher education, and certain non-profit research organizations are exempt from the cap and may file an H-1B at any time. The position being sponsored by such a cap-exempt organization must still adhere to the specialty occupational requirements for H-1B status.
For recent graduates, another option may be to pursue post-completion optional practical training (OPT) or, for those already on OPT (with STEM-designated degree fields), to extend their OPT for an additional two years. The latter option provides additional time for the foreign national to have multiple opportunities to be selected in a future H-1B lottery.
Further, foreign nationals who are married may have the option of working in a dependent status. Certain visas, such as the L-1 and E-3 allow dependents to remain in the U.S. and be able to work incident to their dependent status.
In addition, foreign nationals from certain countries may qualify for other visa types, including the H-1B1 and E-3. The H-1B1 is a specialty occupation visa available to foreign nationals from Chile or Singapore. Similarly, the E-3 is a specialty occupation visa available to foreign nationals from Australia and can be renewed in two-year increments.
Another country-specific option available to Canadian and Mexican citizens is the TN visa. Unlike the H-1B, H-1B1, and E-3 visa options, qualifying for the TN does not broadly require that the position be in a "specialty occupation." To qualify for the TN, the Canadian or Mexican citizen must be employed in a profession listed in the applicable regulations. This includes professionals such as accountants, engineers, lawyers, pharmacists, scientists, and teachers. The initial TN status is granted for up to three years and is also renewable.
There also may be other options available depending on the foreign national's background, such as the O-1A visa for individuals with an extraordinary ability in the sciences, education, business, or athletics, or the O-1B visa for individuals with an extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry. An EB-2 National Interest Waiver may also be a good option for those who would like to pursue a green card, particularly for those in emerging fields in STEM or called to entrepreneurship. This option can also be very appealing as no employer sponsorship is required and there is more flexibility to creatively meet the eligibility requirements, which are similar to an EB-1 or an O-1 visa.
One can also consider working abroad for a period of time or returning to school. In this regard, the L-1 visa can be considered if the foreign national works abroad for at least one year (within a global organization) and is then transferred to work in the U.S. The offered position must be executive or managerial, or a role that requires specialized knowledge (knowledge that is unique, distinct, and/or proprietary to the employer). Some foreign nationals opt to return to school as an F-1 student and pursue an advanced degree. Not only does earning a master's or doctoral degree provide further opportunities to be selected in the H-1B lottery, but it also improves your odds for selection due to the lottery's preference for those with U.S. Master's or higher level degrees.
While not being selected in the H-1B lottery can feel like a setback, there are other potential visa paths that should be carefully reviewed. It is essential to examine all available options and to fully consider long-term goals. Often, there may be a viable visa option that was simply never considered. Additionally, working with an experienced immigration attorney can reveal creative strategies tailored to your personal circumstances. Whether it's pursuing a country-specific visa, leveraging a spouse's dependent status, or advancing your education, there are multiple paths forward. A thoughtful and strategic approach can turn disappointment into opportunity. U.S. immigration law is complex – but it also contains flexibility and nuance. With guidance and planning, foreign nationals and their U.S. employers may find that missing out on the H-1B isn't necessarily the end of the road.s to protect the rights of their staff and patients. By understanding their legal obligations and preparing for enforcement actions, healthcare facilities that work with immigration counsel will continue to provide the best care to the community they serve—even if ICE shows up at their facilities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
