Plan B: Alternative Paths to US Employment for F-1 International Students if H-1B Cap Selection is Missed

Flavia Santos • February 20, 2023

International students on F-1 visas who have not been selected in the H-1B cap lottery face a challenging situation, but there are still alternative immigration options available. These options may require more effort and planning, but they can ultimately lead to the same goal of obtaining a work visa in the United States.

Assess your Remaining Time

It is imperative for individuals currently participating in the Optional Practical Training (OPT) program to assess the remaining time before its expiration. The expiration date of the OPT can significantly affect one's eligibility to continue residing in the United States, particularly if they intend to register for the H-1B visa lottery in 2024. For example, in the event of being selected in the lottery and the OPT expiring on or after April 1, 2024, the individual would be entitled to the H-1B Cap-Gap extension, thereby enabling a continuation of their OPT status until the H-1B visa becomes effective. However, if the OPT validity period expires before April 1, 2024, the individual would be required to depart the US within 60 days after the OPT expiration date. The table below illustrates this scenario.

Gear Up for Back-to-School Season

For students seeking employment opportunities in the United States, enrolling in an academic program that offers Day 1 Curricular Practical Training (CPT) is another viable option. This would enable students to start working immediately, even as they continue their studies. Furthermore, students who have already secured a job offer may be able to work on CPT while awaiting the outcome of their H-1B petition in the annual cap. To take full advantage of this extended period, it would be wise to register for the H-1B cap lottery before the expiration of the OPT period.

Consider the L-1 Visa if you Work for a Multinational Company

As a viable option for professionals seeking long-term employment in the United States, working for a multinational company abroad for a year followed by an intra-company transfer via an L-1 visa can offer numerous strategic benefits. The L-1 visa, designed specifically for such transfers, allows employees of multinational corporations to move to a U.S. subsidiary, affiliate, or parent. The L-1 visa is characterized as a dual intent visa which allows for the flexibility to pursue both temporary work and study opportunities in the country, as well as long-term residency. It also has a validity period from 5-7 years. While this path requires the individual to work abroad for a year, it can prove to be a valuable long-term solution for working in the United States.

TN Visa for Canadian and Mexican Nationals

The TN visa is a nonimmigrant visa category that allows Canadian and Mexican citizens to temporarily work in the United States in certain professional occupations, as listed under the United States-Mexico-Canada Agreement (USMCA). The requirements for a TN visa include a job offer from a U.S. employer, a pre-arranged full-time or part-time job in one of the eligible professions, a bachelor's degree or its equivalent, and proof of professional qualifications. The validity period for a TN visa varies depending on the length of the job offer, but it can be issued for up to three years and can be renewed indefinitely.

Entrepreneurs and Investors

For those who are more entrepreneurial, the E-1 and E-2 visas, on the other hand, are designed for individuals engaged in international trade with the U.S. These visas allow for the holder to work in the U.S. while conducting substantial trade between the U.S. and their home country. Each of these visas offers unique opportunities and requirements, and it's important to consult with an immigration attorney to determine which is the best fit for your individual circumstances.

Apply for a Dependent Work Permit

For individuals who are married, spousal visa options may also be a feasible alternative. The H-4 Employment Authorization Document (EAD) allows eligible spouses of H-1B visa holders to obtain permission to work in the U.S. as long as the principal spouse has an approved I-140. Meanwhile, the L-2 and E-2 dependent visas are options for spouses of L-1 and E-2 visa holders respectively. Unlike the H-4, which requires the principal H-1B spouse to have an approved I-140D, L-2 and E-2 spouses are considered work-authorized incident to status and need not apply for an employment authorization document. These spousal visas can provide a significant source of income and support for the family as the primary visa holder establishes themselves in the U.S.

Conclusion

It is important for students to consider all of their options and work with an experienced immigration attorney to determine the best course of action. While the H-1B cap can be a frustrating and challenging process, there are still paths to success for international students. With careful planning and perseverance, students can achieve their goals and build a successful career in the United States.

Disclaimer: This article is for informational purposes only and should not be considered legal advice. It is highly recommended to seek the advice of an immigration lawyer before making any decisions.

Flavia Lloyd

Streamlining Visa Extensions: The Deference Policy Codified in the H-1B Modernization Rule

By Kris Quadros-Ragar • January 16, 2025

A key development occurred in December 2024, when the deference policy was officially written into regulation (the “H-1B modernization rule”), set to take effect on January 17, 2025. Once it takes effect, USCIS adjudicators must apply the deference policy to extension requests involving the same employer, the same employee, and the same job details. USCIS can still decide not to defer to the previous approval if: There was a material error in the earlier approval. There has been a material change in circumstances or eligibility. New information raises doubts about eligibility. Even in these situations, officers must explain why they are not deferring. Importantly, USCIS does not have to defer to decisions made by other agencies, such as the U.S. Department of State or Customs and Border Protection. By turning the deference policy into a regulation, it becomes more difficult for future administrations to eliminate it quickly. Any attempt to rescind or change the policy now requires a lengthy rulemaking process that includes a public notice-and-comment period. Key Takeaways for Employers Greater Predictability: The deference policy, now a regulation, gives employers more certainty that extension petitions will be approved if there are no major changes in the employee’s role or the employer’s situation. Potential Changes Ahead: A future administration could still try to rescind this rule, but they must follow a formal regulatory process, which takes time and offers employers some warning. File Extensions Early: Employers can submit extension petitions up to six months before a visa expires. Filing early can help avoid unexpected policy shifts and minimize risks of RFEs or denials. Overall, the codification of the deference policy is a significant step that offers much-needed stability and efficiency in the U.S. immigration process. By planning ahead and staying informed, employers can take advantage of this improved predictability. As always, working closely with an immigration attorney ensures that extension applications are accurate, well-prepared, and filed promptly—especially during times when policy may evolve.

USCIS Introduces Customer Experience Improvements for H-1B Cap Season

By Kris Quadros-Ragar • February 1, 2024

The U.S. Citizenship and Immigration Services (USCIS) has recently announced a significant enhancement to its customer experience with the upcoming launch of organizational accounts for H-1B cap season. These measures, set to debut in February 2024 , aim to boost efficiency and foster collaboration among organizations, legal representatives, and USCIS. One of the key features of this improvement is the introduction of organizational accounts for non-cap filings and the fiscal year (FY) 2025 H-1B cap season. This innovation allows multiple individuals within an organization and their legal representatives to collaborate seamlessly on H-1B registrations, Form I-129 (Petition for a Nonimmigrant Worker), and associated Form I-907 (Request for Premium Processing Service). The introduction of organizational accounts marks a transition to a fully electronic H-1B lifecycle, covering registration, petition preparation, decision-making, and transmission to the Department of State. USCIS expects to launch organizational accounts in February 2024, with the online filing of Forms I-129 and I-907 following shortly thereafter. This shift to electronic filing is anticipated to streamline the H-1B petition process, reducing common errors and eliminating duplicate H-1B registrations. Further, as part of USCIS's broader efforts to enhance efficiency and standardize processes, the paper filing location for Forms I-129 and I-907 will transition from service centers to the USCIS lockbox. This move aims to reduce costs while maintaining a more streamlined and standardized approach to handling H-1B petitions. With these customer experience improvements, USCIS is taking a significant stride towards modernizing and streamlining the H-1B petition process. As we approach the FY 2025 H-1B registration period, Santos Lloyd Law Firm is closely monitoring the evolving landscape of H-1B changes and actively engaging in upcoming sessions to maximize the benefits of these improvements.

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How Professional Athletes Can Immigrate to the United States: Visa Options for Champions and Competitors

By Shirin Navabi • June 12, 2025

The United States has long been a destination for the world’s most talented athletes—not only to compete at the highest level, but to access world-class training, coaching opportunities, and long-term career prospects. Whether on the field, in the ring, or across the chessboard, athletes from across the globe are finding immigration pathways that allow them to pursue their athletic and professional goals in the U.S. U.S. immigration law offers several visa and green card options designed specifically for individuals with extraordinary athletic talent. These include the P-1A visa for internationally recognized athletes, the O-1A visa for individuals of extraordinary ability, and the EB-1A immigrant petition, which can lead to permanent residency and ultimately, U.S. citizenship. The P-1A visa is commonly used by professional athletes coming to the U.S. to compete in a specific event or season. This applies not only to individual athletes but also to members of teams or clubs recognized internationally. It is widely used by soccer players, basketball players, MMA fighters, Brazilian Jiu-Jitsu competitors, and even elite chess players. Athletes must demonstrate a high level of international recognition and a record of performance in their sport. The O-1A visa is a strong option for coaches who demonstrate extraordinary ability, typically evidenced by championship titles, sustained winning records, or recognition as integral to their team’s success. To qualify, a coach must establish that their expertise places them among the small percentage of top professionals in their field. For athletes seeking permanent status in the U.S., the EB-1A immigrant petition —often referred to as the “extraordinary ability green card”—provides a direct path to lawful permanent residency. It requires clear documentation that the individual is among the very best in their sport and has achieved sustained national or international success. Unlike other green card categories, the EB-1A does not require employer sponsorship and can be self-petitioned. This has become a common path for MMA world champions, BJJ black belt medalists, Olympic athletes, and chess grandmasters—many of whom now represent the U.S. at the highest levels of international competition. It’s important to note that U.S. immigration law defines “athlete” broadly. Whether you are a professional football player in Europe, a sprinter from the Caribbean, a judoka, a gymnast, or a grandmaster in chess, your achievements may qualify under these categories if they are properly documented and presented. The key is a consistent record of excellence and recognition in your sport on a national or international scale. Our office specializes in these types of immigration matters. Whether you are an individual athlete looking to relocate or an organization seeking to bring international talent to your roster, we offer tailored legal strategies to support your goals. If you are exploring options to compete, train, or build your future in the U.S., we’re here to help you take the next step.

Understanding the Laken Riley Act: A Turning Point in U.S. Immigration Enforcement

By Denice Flores • June 5, 2025

In January 2025, the U.S. Congress passed the Laken Riley Act , marking a significant shift in immigration enforcement policy. The Act requires the Department of Homeland Security to detain certain non-U.S. nationals who have been arrested for theft-related offenses such as burglary, theft, larceny, or shoplifting. Under this Act, the Department of Homeland Security must detain an individual who: (1) is unlawfully present in the United States or did not possess the necessary documents when applying for admission; and (2) has been charged with, arrested for, convicted of, or admits to having committed acts that constitute the essential elements of burglary, theft, larceny, or shoplifting. The Act also authorizes states to sue the federal government for decisions or alleged failures related to immigration enforcement. It authorizes state governments to sue for injunctive relief over certain immigration-related decisions or alleged failures by the federal government if the decision or failure caused the state or its residents harm, including financial harm of more than $100. Specifically, the state government may sue the federal government over a: Decision to release a non-U.S. national from custody; Failure to fulfill requirements relating to inspecting individuals seeking admission into the United States, including requirements related to asylum interviews; Failure to fulfill a requirement to stop issuing visas to nationals of a country that unreasonably denies or delays acceptance of nationals of that country; Violation of limitations on immigration parole, such as the requirement that parole be granted only on a case-by-case basis; or Failure to detain an individual who has been ordered removed from the United States. The Act's stringent detention requirements may lead to increased fear and uncertainty within immigrant communities. Individuals who are merely accused of certain crimes could face mandatory detention. The Act may also affect legal immigration processes. Increased detention and deportation efforts could strain resources, potentially leading to delays in processing visas and asylum applications. Given the evolving legal landscape: Stay Informed and/or Seek Legal Counsel - Consult with your immigration attorney to understand how new laws and policies may affect your situation and if you or someone you know is facing immigration-related legal issues. Know Your Rights - Familiarize yourself with your legal rights, especially concerning interactions with law enforcement and immigration authorities. Community Engagement - Participate in community organizations that provide support and resources for immigrants, fostering a network of assistance and advocacy. If you have any questions or would like to consult with an experienced immigration attorney, contact our office to schedule a consultation.

ICE Issues OPT Warnings to F-1 Students for Unreported Employment

By Kris Quadros-Ragar • May 29, 2025

In a renewed wave of enforcement, U.S. Immigration and Customs Enforcement (ICE) has started sending formal alerts to certain F-1 students participating in Optional Practical Training (OPT), flagging that their records reflect over 90 days without any reported employment. These students have been advised to update their employment status in the Student and Exchange Visitor Information System (SEVIS) within 15 days. Failure to take timely corrective action may lead to the termination of the student's SEVIS record, effectively marking them as out of status, and may ultimately trigger removal proceedings. The notices are intended as a warning that students who do not comply with OPT reporting obligations are at risk of serious immigration consequences. Understanding OPT and Its Unemployment Limits Optional Practical Training (commonly referred to as “OPT”) is a work authorization benefit that allows eligible F-1 international students to gain hands-on experience in their field of study. Students may apply for pre-completion OPT (while still in school) or post-completion OPT (after graduation), typically for up to 12 months. Those with degrees in qualifying STEM fields may apply for an additional 24-month STEM OPT extension, giving them a total of 36 months of work authorization in the U.S. To maintain valid F-1 status while on OPT, students must remain actively employed in a position related to their field of study. The amount of time a student may remain in the United States while on OPT without being properly employed is capped at: 90 days during the standard 12-month post-completion OPT, and 150 days for those on the STEM OPT extension, which includes any days of unemployment accrued during the initial OPT period. These unemployment limits are cumulative and enforced strictly through SEVIS monitoring. What Should F-1 Students Do? If you are an F-1 student on OPT or STEM OPT and receive a warning or are unsure about your compliance status, act quickly: Contact your Designated School Official (DSO) immediately to review and, if necessary, update your SEVIS record. Ensure all employment is properly documented and reported through your school’s international office. Do not ignore warning notices, as failure to respond may lead to SEVIS termination and potentially the initiation of removal proceedings. It is also advisable to consult with a qualified immigration attorney to explore available options and understand how enforcement actions may affect your status or future immigration plans. If you received a notice or have questions about your F-1 status, our attorneys are here to help you take the right steps to protect your future in the United States. Contact us today to schedule a consultation.