Key Takeaways
- Nationals of Canada, Mexico, Australia, Chile, and Singapore have treaty-based work visas (TN, E-3, H-1B1) that are not subject to the H-1B lottery.
- Highly accomplished individuals may qualify for the O-1, and STEM graduates of U.S. schools can generally work for up to three years on OPT and its STEM extension.
- DHS proposed in October 2026 to charge large new fees for OPT, so student-based options should be checked against the latest rules.
Most people entered in the H-1B lottery are not selected. If you are one of them, or your employer wants to hire you anyway, what other visa options might be available?
In this TalksOnLaw Brief, Joel Cohen talks with immigration attorneys Maggie Murphy and Amy Lighter of the firm BAL (Berry Appleman & Leiden) about the alternatives business immigration lawyers look for when an H-1B registration is not selected.
Visas Based on Nationality
Lighter explains that one of the first things lawyers look at is the person's country of citizenship. Canadian and Mexican nationals can use the TN visa, created under NAFTA and continued under its successor agreement, and because demand does not outstrip supply, a TN can be sought any time of year. Murphy adds the treaty options for three more countries: the E-3 for Australians, which is very similar to the H-1B and can be processed directly at U.S. consulates in Australia, and the H-1B1 for nationals of Chile and Singapore, which also requires a bachelor's-level position and is largely processed at consulates abroad.
Achievement and Education
For people at the very top of their fields, Murphy describes the O-1 for individuals of extraordinary ability. Candidates who were entered in the lottery but not selected sometimes turn out to have patents, major discoveries, or artistic acclaim that make them strong O-1 candidates; the category covers scientists, researchers, artists, and the motion picture industry. Lighter explains STEM OPT: a student who graduates from a U.S. program in science, technology, engineering, or mathematics can add two years of work authorization after the first year of OPT, if working for an E-Verify employer.
Multinational Transfers and Trying Again
When time runs out, Lighter says, a company with operations abroad may employ the person outside the U.S. for at least a year, after which they may return in L-1 status as a manager or a specialized knowledge worker. Murphy adds that prior unsuccessful registrations neither help nor hurt; a qualified candidate with a willing sponsor can be entered every year.
What to Know Now
Every option the guests describe remains available, but the landscape has shifted. The H-1B selection is now weighted by wage level beginning with the FY2027 season, and a contested $100,000 payment applies to certain new H-1B petitions, mainly for workers outside the U.S., which makes in-country routes such as OPT more valuable to employers. At the same time, DHS proposed in October 2026 new fees of $70,000 for initial OPT and $30,000 for subsequent OPT periods, and a 2026 rule replaced open-ended "duration of status" for students with fixed admission periods. DHS has also proposed ending the 60-day grace period after a job ends, and the Labor Department has proposed raising the wage levels that apply to H-1B1 and E-3 workers. Because several of these are proposals that could change, candidates and employers should confirm the current rules before relying on any one path.
