Your employee was not selected in the H-1B lottery - the employer's options

A registration that does not get picked arrives without a plan attached. You have a person who accepted an offer, a status with an end date, and a hiring manager asking what happens now.

Two inputs decide the answer. What status the employee holds today, and how many days are left on it. Every route below follows from those two, and the list gets shorter as the second number does.

This post is written for the company. Our companion piece on what to do when a registration is not picked is written for the employee, and that is the one to forward.

Talk to our team about the options for a specific employee

Which employer options after the H-1B lottery stay open, by status and days remaining

Which date the employer needs on the desk: the OPT end date, cap-gap and the I-94

The governing date is the end of the employee's period of authorized stay. For most people in this position that is the F-1 OPT end date printed on the employment authorization document, and it is a hard stop for work.

One correction first, because it costs companies weeks. Cap-gap does not apply here. It extends status and work authorization only where a cap-subject petition was timely filed for a selected registration. The extension then runs to April 1 of the fiscal year requested, or to the petition validity start date, whichever comes first. A registration that was not selected produces no cap-gap at all.

What the employee does get is time to file, not time to work. An F-1 who has finished a course of study and any authorized practical training gets "an additional 60-day period to prepare for departure from the United States or to transfer."

Someone in H-1B, L-1, O-1, TN, E-1, E-2, E-3 or H-1B1 status gets up to 60 consecutive days under 8 CFR 214.1(l)(2). It is available once during each authorized validity period, and no work is permitted in it.

So the hard stops are the OPT end date and the I-94 expiry. The 60-day windows are soft, and they are for filing and departure planning.

Name the owner of that date inside the company. The recruiter who made the offer is rarely the person watching it, and the date needs to sit in the HR system with a reminder at 120 days. Our guides cover the STEM OPT extension, moving from OPT to H-1B, the 60-day grace period, how the lottery works and what happens after selection.

Which employers qualify for cap-exempt employment, and how fast can it be filed?

Four categories qualify, and they are set by statute rather than by practice. Under INA 214(g)(5), the numerical limits do not reach a worker employed at an institution of higher education or a related or affiliated nonprofit entity. They also do not reach a nonprofit research organization or a governmental research organization.

There is no registration and no lottery for those petitions, so they can be filed at any point in the year. The practical question is whether the employee's day-to-day work would genuinely sit at the qualifying organization, since the exemption attaches to the employment, not to a job title.

It is the right call when a research institute, a teaching hospital or a university affiliate is already in your orbit. It fits poorly when a commercial role is dressed up as an academic one. The specialty occupation test still applies either way. Our post on cap-exempt H-1B employment covers the categories in more detail.

What is concurrent cap-exempt employment, and which employers can use it?

It is an arrangement where the employee holds a qualifying cap-exempt position and works for you at the same time, on a second petition that you file. USCIS states it plainly: someone "currently employed in a cap-exempt position" may "engage in concurrent employment in a cap-subject position as long as you will continue to be employed in the cap-exempt position."

The timing is better than most HR leads expect. Work for the cap-subject employer can begin once that employer properly files a non-frivolous petition, or on the requested start date, whichever is later.

What breaks is the part to plan for. The exemption is borrowed from the other job, so if the cap-exempt employment ends, the basis for your petition ends with it. USCIS ties the protection to whether the worker continues that employment, was previously counted, or otherwise remains exempt.

That makes documentation the employer's job. Keep evidence of the qualifying employment, its continuation, and the hours and duties on your side. Our post on concurrent H-1B employment walks through the filing.

The full menu of U.S. work visas, in one placeEvery classification an employer can use, what each one requires, and which ones run on a lottery.

Compare the classifications

When is the O-1 for employers the right build, and what does the advisory opinion require?

The O-1 for employers is the right call when the person already has a record and someone has to assemble it. The record must include "at least three different types of documentation corresponding to those listed in the regulations, or comparable evidence in certain circumstances," so this route is decided by what exists rather than by how the role is written.

The petition also needs a written advisory opinion from a peer group, which can include a labor organization, or from a person with expertise in the field. Exceptions exist where no appropriate peer group exists. Budget real weeks for that consultation, because it sits outside your control.

Initial O-1 status runs up to three years, with extensions granted in increments of up to one year. The elapsed time on this route comes from the evidence build and the advisory opinion, not from the adjudication. Our O-1A guide has the criteria, so there is no need to restate them here.

When does the L-1 for multinationals work, and what does one year of qualifying employment abroad cost in elapsed time?

The L-1 for multinationals works when you already have a parent, branch, subsidiary or affiliate abroad. It is also the option most often misread as fast. The employee has to have been "working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States."

That year is real elapsed time, on top of the petition. An employee placed at a related entity in November is not eligible to transfer back until the following November at the earliest.

The corporate relationship carries its own evidence burden, since the U.S. employer must have a qualifying relationship with the foreign company. L-1A executives and managers get up to seven years in total, and L-1B specialized knowledge workers up to five. See L-1A against H-1B, opening a new U.S. office and the L-1A guide.

TN, E-3 and H-1B1: which treaty country classifications skip the lottery?

Three classifications do the same job as an H-1B without a registration, and each is limited by nationality.

TN. Open to citizens of Canada and Mexico where the role appears on the USMCA professional list. Status runs up to three years and is renewable. Canadians "are not required to apply for a TN visa at a U.S. consulate" and can present documents to a CBP officer at a port of entry. TD family members "are not permitted to work while in the United States, but they are permitted to study."

E-3. Open only to nationals of Australia, and it needs a labor condition application filed for E-3 classification. Status runs two years at a time with extensions available. Spouses are employment authorized incident to status.

H-1B1. Open to nationals of Chile and Singapore under the free trade agreements named at INA 214(g)(8), with 1,400 numbers a year for Chile and 5,400 for Singapore. Those caps have not been a practical constraint.

Two points change offers. The E-3 spouse can work and the TN and H-1B1 spouse cannot, which is worth saying out loud during negotiation. And the TN and H-1B1 can be handled at a consulate or a port of entry, which removes a USCIS filing and its fee from the budget. Our guides cover the TN application and the E-3 for Australians.

When does a J-1 research scholar role fit, and what triggers the two-year home residence requirement?

It fits where the work is genuinely research or teaching and a designated sponsor will accept the placement, which is the gate most employers miss. J-1 is administered through sponsors designated under 22 CFR part 62, so a company cannot simply file for it.

The part that collapses plans later is INA 212(e). The two-year foreign residence requirement attaches where participation was financed by a government. It also attaches where the field appears on the skills list for the person's country, or where the program involved graduate medical education. It then requires two years in the home country before an H or L classification or permanent residence becomes available.

Use it as a bridge with your eyes open, and check the trigger before the offer rather than after.

What does each option cost, and how long does it take to a start date?

Current as of September 2026. Confirm every figure on the USCIS fee schedule before you file, since the schedule moves.

Premium processing is $2,965 for a 15 business day response, and it is worth buying whenever the start date is the constraint.

On the $100,000 H-1B payment: it is not being collected. The District of Massachusetts vacated the 2025 proclamation on 8 June 2026, and the First Circuit denied the government a stay on 24 July 2026. A further proclamation signed on 18 September 2026 extends the policy to 21 September 2027, and the vacatur still stands over it.

Our post on the $100,000 fee tracks the posture, and what sponsorship costs an employer covers the rest of the budget. The H-1B guide sets out what an employer files at each stage, and what attaches once a petition is approved.

Can you employ the person from abroad, and what does that do to the next cap-subject petition?

Yes, where you have an entity that can employ them, and it is the option that keeps the relationship alive. Work performed outside the United States for a foreign entity is not U.S. employment and needs no U.S. status.

Two things to get right. That time only builds L-1 eligibility if the entity is a qualifying organization and the work is qualifying, so check the relationship before you place anyone. And the employee can be registered again next spring, with the petition then requesting consular notification rather than a change of status, since they are abroad.

What to put in place before the next registration period

1. Name the owner of the status date and put it in the HR system with a 120-day reminder.
2. Check L-1 eligibility now, because the one-year clock has to start a year before you need it.
3. Open an O-1 evidence file for anyone whose profile is close, and add to it as awards and publications land.
4. Ask about citizenship at the offer stage, since a Canadian, Mexican, Australian, Chilean or Singaporean candidate never needs the lottery.
5. Budget premium processing into the requisition rather than deciding on it under pressure.
6. Register every eligible person, including anyone you are considering for a cap-exempt role, so the option stays open.

Which visa fits the role you are hiring forA side-by-side look at the alternatives to the H-1B, with what each one requires from the employer.

See the alternatives

What employer options after the H-1B lottery come down to

The lottery result removed one route and left several. Which employer options after the H-1B lottery are open to you was decided earlier. It turns on where your entities are, what the employee's record shows, and which passport is in the drawer.

The companies that handle this well are the ones holding the status date and asking the nationality question at the offer stage. That work costs nothing and it is what keeps the list from shrinking to one.

Tukki runs employer-side immigration filings with attorneys on every case, and gives your team a single place to see where each employee stands.

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