Lost the H-1B lottery? Here is what you can still do

If you were not selected, you are not out of options. Several visas do not use the H-1B lottery at all. Which one fits you depends on four things: your citizenship, your employer, your record in your field and your current status. This guide walks through each option, what it needs and what it costs as of September 2026.

How does the H-1B lottery work now?

Starting with FY 2027, the H-1B selection is weighted by wage level. When USCIS receives more registrations than it needs, each registration is generally assigned the highest wage level that the offered wage meets for that occupation and area. A registration at wage level IV goes into the selection pool 4 times, level III 3 times, level II 2 times and level I once. Each unique beneficiary still counts only once toward the cap. Each registration costs $215. (USCIS, H-1B Cap Season; final rule, 90 FR 60864)

If you plan to try again next year, ask your employer which wage level they would register you at. A higher level is entered into the pool more times, so it changes your odds.

DHS has also proposed a separate $103,265 fee for all cap-subject H-1B petitions, including those eligible for the advanced degree exemption. It is a proposed rule, not a final one. (proposed rule, 91 FR 54817) Our summary of the proposed H-1B fee covers what it would change.

What about the $100,000 H-1B payment?

The $100,000 payment is tied up in court and was just extended, so its status is unsettled. Proclamation 10973 required it for certain H-1B petitions filed at or after 12:01 a.m. Eastern on September 21, 2025. USCIS says it applies to petitions for people who are outside the United States and do not have a valid H-1B visa, and in some cases to people inside the US whose change or extension of status is not granted. (USCIS, H-1B Specialty Occupations)

On June 8, 2026, a federal court in Massachusetts vacated the agency guidance that implemented the payment (State of California v. Mullin, 1:25-cv-13829). On July 24, 2026, the First Circuit denied the government's request to pause that order. DHS says it will comply with the order while it considers next steps, and that it still plans to collect the payment if the order is later lifted. (USCIS, H-1B Specialty Occupations)

On September 18, 2026, the President signed Proclamation 11069. It extends the restriction for another 12 months, starting 12:01 a.m. eastern daylight time on September 21, 2026. (Proclamation 11069, 91 FR 60497) When we checked on September 26, 2026, the USCIS H-1B page had not yet said how the new proclamation and the court order fit together. This is moving quickly. Ask your attorney whether any payment applies to you.

Option 1: work for a cap-exempt employer

Some employers are not subject to the H-1B cap, so there is no lottery. USCIS lists them: an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization. (USCIS, H-1B Specialty Occupations)

This often fits research and university jobs. The job has to be with, or at, one of these employers. If you later move to a cap-subject employer, USCIS says that employer's petition is subject to the cap. The proclamation does not exempt cap-exempt employers, so the $100,000 question above can still matter. See our H-1B page.

Option 2: the O-1A, if your record is strong

The O-1A is a work visa for people with extraordinary ability in science, education, business or athletics. It does not use the H-1B lottery. You need a major, internationally recognized award, such as the Nobel Prize, or evidence meeting at least 3 of 8 criteria, such as judging others' work, scholarly articles, press about you or a high salary. (8 CFR 214.2(o)(3)(iii))

You cannot file an O-1 for yourself. A US employer, a US agent, or a foreign employer through a US agent must file it. The petition also needs a written advisory opinion from a peer group or a person with expertise in your field. The first approval can run up to 3 years, and extensions come in steps of up to 1 year. (USCIS, O-1 Visa)

Government fees as of September 2026: $1,055 for the Form I-129 O petition ($530 for small employers and nonprofits), plus an Asylum Program Fee of $600 ($300 for small employers, $0 for nonprofits). Premium processing is optional at $2,965, and USCIS then takes action within 15 business days. (USCIS fee schedule G-1055; USCIS premium processing) The partner firm's flat legal fee starts at $6,999, quoted before you sign.

Read how to qualify for an O-1 without a famous award, and see how the O-1 compares with the H-1B.

Option 3: start a green card on your own

EB-1A and EB-2 NIW are green cards you can file for yourself, with no employer. EB-1A is for people at the very top of their field and uses 10 criteria. NIW needs an advanced degree or exceptional ability first, then a three-part test about your planned work. (USCIS Policy Manual, EB-1A; USCIS Policy Manual, NIW)

The Form I-140 fee is $715 on paper or $665 online, plus a $300 Asylum Program Fee for self-petitioners. Premium processing costs $2,965. USCIS then takes action within 15 business days for EB-1A and 45 business days for NIW. (USCIS fee schedule G-1055; USCIS premium processing)

Then comes the visa number. On the Final Action Dates chart of the September 2026 Visa Bulletin, EB-1 and EB-2 are current for everyone except people born in mainland China or India, and EB-2 India is unavailable this month. (Visa Bulletin for September 2026) See our Visa Bulletin page and our guide to a green card without an employer sponsor.

Treat this as a second track. A green card petition takes time, and you still need a way to stay and work in the meantime. Plan both with your attorney.

Option 4: an L-1 after a year abroad

If your employer has a parent, branch, subsidiary or affiliate outside the US, you can work there first. The L-1 petition must show at least one continuous year of full-time employment abroad with that qualifying organization within the three years before the petition is filed. That year must be in a managerial or executive role, or in a role involving specialized knowledge. The L-1A is for managers and executives. The L-1B is for people with specialized knowledge. (8 CFR 214.2(l); USCIS, L-1A; USCIS, L-1B)

Lawful time working for the same company in the US, and brief trips here for business or pleasure, do not break that year. They do not count toward it either. It takes a year of planning, but an L-1 petition does not go through H-1B registration and selection. See our L-1 page.

Option 5: visas tied to your citizenship

Some visas are open only to citizens or nationals of certain countries. Check these first.

• E-3 (Australia): for Australian nationals in a specialty occupation that needs a bachelor's or higher degree in the specific specialty, or its equivalent, with a Labor Condition Application. Your spouse is authorized to work. (USCIS, E-3)
• H-1B1 (Chile and Singapore): for citizens of Chile or Singapore in a specialty occupation, with a Labor Condition Application. Up to 6,800 visas each fiscal year are set aside from the 65,000 H-1B cap for this program. (USCIS, H-1B Cap Season; 20 CFR 655.700)
• TN (Canada and Mexico): for Canadian and Mexican citizens in a profession on the USMCA list, with a prearranged job. Canadians can apply at certain US ports of entry without a visa. Mexicans must first get a TN visa at a US embassy or consulate. The initial stay is up to 3 years. (USCIS, TN)
• E-2 (treaty countries): you must be a national of a country with a qualifying treaty. You invest a substantial amount of capital in a real, operating US business, and you come to develop and direct it, shown by owning at least 50% or having operational control. The business cannot be marginal: it needs the capacity to earn more than a minimal living for you and your family. The rules set no fixed dollar minimum; the amount is judged against the cost of the business. The partner firm's flat legal fee starts at $7,500, quoted before you sign. (USCIS, E-2; 8 CFR 214.2(e)(14))

Option 6: more school, with care

Some people return to school to stay in F-1 status. F-1 status depends on a full course of study, so it has to be a real study plan, not only a way to wait.

The rules here are in flux. On July 17, 2026, DHS published a final rule to replace "duration of status" with fixed admission periods of up to 4 years, and to stop graduate students from changing educational objectives. It was due to take effect on September 15, 2026. (final rule, 91 FR 44976)

On September 14, 2026, the federal court in Massachusetts postponed the rule's effective date. It also barred DHS from taking further steps to implement the rule until the court orders otherwise or the case is decided. (preliminary injunction order, Presidents' Alliance v. DHS, 1:26-cv-13799) So the rule has not taken effect, but that can change as the case goes on. Check with your school's DSO before you rely on it.

If you are on OPT, watch your unemployment days. Post-completion OPT allows no more than 90 days of unemployment in total. With a 24-month STEM extension, the limit is 150 days across the whole OPT period. (8 CFR 214.2(f)(10)(ii)(E)) Talk to your school's DSO and an attorney before you enroll.

How long is the grace period after a job ends?

Up to 60 consecutive days, if you are in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status and the job your status is based on ends. It ends sooner if your validity period ends first, and it is available once per validity period.

"An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien's classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period." 8 CFR 214.1(l)(2)

The same paragraph says DHS may shorten or eliminate the period as a matter of discretion, and that you may not work during it unless you have other work authorization. (8 CFR 214.1(l)(2))

Do not wait until the last week. A new petition takes time to prepare.

What should you do this week?

Small steps now keep more doors open later.

1. Write down your status end date and, if you are on OPT, how many unemployment days you have used.
2. Ask your employer about cap-exempt partners, offices abroad or O-1 sponsorship.
3. Check whether your citizenship opens E-3, H-1B1, TN or E-2.
4. See where you stand for O-1A, EB-1A and NIW with a free evaluation. No account or card needed.
5. Talk to an attorney before your status or grace period runs out.

Sources

All checked September 2026.

1. USCIS, H-1B Cap Season (updated 09/21/2026). Weighted selection, the $215 registration fee and the H-1B1 set-aside.
2. USCIS, H-1B Specialty Occupations (updated 09/21/2026). The $100,000 payment, the court orders and cap-exempt employers.
3. Federal Register, Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions, final rule, 90 FR 60864 (December 29, 2025).
4. Federal Register, Proclamation 11069, Restriction on Entry of Certain Nonimmigrant Workers, 91 FR 60497 (September 23, 2026).
5. Federal Register, Fee for Certain H-1B Petitions, proposed rule, 91 FR 54817 (August 25, 2026).
6. USCIS, O-1 Visa: Individuals with Extraordinary Ability or Achievement.
7. eCFR, 8 CFR 214.2. The O-1 criteria, L-1 definitions, E-2 substantial capital and F-1 OPT unemployment limits.
8. eCFR, 8 CFR 214.1(l)(2). The 60-day grace period, quoted verbatim above.
9. USCIS, Form G-1055 Fee Schedule (edition 09/09/26).
10. USCIS, How Do I Request Premium Processing? (updated 03/23/2026).
11. USCIS Policy Manual, Volume 6, Part F, Chapter 2 (EB-1A).
12. USCIS Policy Manual, Volume 6, Part F, Chapter 5 (EB-2 and NIW).
13. U.S. Department of State, Visa Bulletin for September 2026.
14. USCIS, L-1A Intracompany Transferee Executive or Manager (updated 08/31/2026) and L-1B Intracompany Transferee Specialized Knowledge.
15. USCIS, E-3 Specialty Occupation Workers from Australia.
16. eCFR, 20 CFR 655.700. Labor Condition Application rules for H-1B1 and E-3.
17. USCIS, TN USMCA Professionals.
18. USCIS, E-2 Treaty Investors (updated 08/20/2026).
19. Federal Register, Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media, final rule, 91 FR 44976 (July 17, 2026).
20. Presidents' Alliance on Higher Education and Immigration v. DHS, No. 1:26-cv-13799 (D. Mass.), Preliminary Injunction Order Postponing Effective Date of Final Rule (September 14, 2026).

Frequently asked questions

Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.