What to Do If Your OPT Is Ending and You Did Not Get an H-1B
If your OPT is about to expire and you were not selected in the H-1B lottery, you might be concerned about your ability to stay and work in the U.S. However, obtaining an H-1B visa without winning the lottery is possible. By working for a cap-exempt employer, you can secure an H-1B visa that is not subject to the annual lottery. Once you have this approval, a cap-subject employer can file for concurrent H-1B employment, allowing you to work for both companies at the same time. This arrangement lets you remain employed while your cap-subject employer continues trying for the lottery each year.
Here is how the process works.
Step 1: Find a Cap-Exempt Employer
An H-1B cap-exempt employer is an organization that can sponsor H-1B workers without going through the lottery. These employers include:
- Accredited U.S. colleges and universities
- Nonprofit research organizations
- Government research institutions
- Nonprofit organizations affiliated with a university
If you secure a job with one of these employers, they can file an H-1B petition for you at any time of the year without being subject to the annual cap.
Step 2: Obtain an H-1B Visa Through the Cap-Exempt Employer
Once a cap-exempt employer hires you, they can sponsor you for an H-1B visa. After approval, you can legally work in the U.S. under their sponsorship. One important condition is that you must continue working for the cap-exempt employer in order to maintain your H-1B status.
Step 3: Apply for a Concurrent H-1B With a Cap-Subject Employer
After securing your H-1B with a cap-exempt employer, you can find a cap-subject employer that is willing to sponsor you. Since you already have an H-1B visa, this employer can file a concurrent H-1B petition. This means you can work for both employers simultaneously without needing to win the lottery.
- Your cap-exempt H-1B remains valid as long as you continue working for the cap-exempt employer.
- The cap-subject employer does not need to wait for the next lottery to file for your concurrent employment.
Step 4: Stay Employed While Waiting for Lottery Selection
As long as your cap-exempt H-1B remains active, you can continue working for both employers. Meanwhile, your cap-subject employer can keep entering you in the H-1B lottery each year. Once selected, they can file a new H-1B petition under the cap, allowing you to transition to their sponsorship if desired.
At that point, you can:
- Continue working for both employers, or
- Move entirely to the cap-subject employer once the new H-1B is approved.
Benefits of This Strategy
- No employment gap – You can keep working legally even after OPT expires.
- More work opportunities – You can gain experience with a cap-exempt and cap-subject employer.
- Higher chances of getting an H-1B – Your cap-subject employer can keep trying the lottery while you work.
Final Thoughts
If your OPT is ending and you were not selected in the H-1B lottery, working for a cap-exempt employer is a great way to stay in the U.S. legally. This approach allows you to keep working while increasing your chances of eventually obtaining a cap-subject H-1B visa.
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JEREMY L. RICHARDS is the founding partner of Richards and Jurusik and has dedicated his career to U.S. immigration law, with a specialized focus on assisting Canadian and Mexican citizens under the United States-Mexico-Canada Agreement (USMCA) to work and live in the United States. (Full Bio)
