Visa
Not Selected in the H-1B Lottery? 9 Options for the FY2028 Cap Season
Visahire Team
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H-1B $100k Fee Update
The $100K H-1B fee, first announced September 21, 2025, is currently not in effect while the federal government appeals two separate court orders that found the executive branch lacked authority to impose the fee.
Proposed Additional $103,265 H-1B Fee
On August 25, 2026, the U.S. Department of Homeland Security (DHS) proposed a new $103,265 filing fee for all H-1B cap-subject petitions.
If passed this fee would apply to all regular cap-subject H-1B petitions including change of status petitions.
The rule is currently not in effect. The DHS must review comments and issue a final rule, potentially by early 2027, before any implementation or legal challenges unfold.
Summary
Audit Your Status Timeline: Calculate exact remaining days on your EAD card, including allowable unemployment days (90 for initial OPT; 150 total with STEM).
Consult Your DSO: If pursuing STEM OPT or school transfers, confirm filing windows with your school's Designated School Official.
Leverage Nationality Visas: If you hold citizenship in Canada, Mexico, Australia, Chile, or Singapore, pursue TN, E-3, or H-1B1 options first.
Explore Cap-Exempt Employers: Universities and non-profit research institutes can sponsor H-1B filings at any time of year.
If you were not selected in the H-1B cap lottery, it can feel like a major hurdle, but it is by no means the end of your immigration journey. Depending on your nationality, education, employer type, and professional accomplishments, several alternative visa and work authorization pathways remain open to you.
Quick Comparison Matrix
Option | Target Demographic | Cap / Lottery? | Employer Needed? | Primary Advantage |
|---|---|---|---|---|
1. Re-Register on STEM OPT for FY 2028 | F-1 Graduates with STEM degrees | Yes (Weighted Lottery) | Yes (E-Verify) | Keep working in current role while re-entering the lottery |
2. Cap-Exempt H-1B | Researchers, academics, university staff | No Cap / No Lottery | Yes (Cap-exempt entity) | Immediate filing at any time of year |
3. O-1A Extraordinary Ability Visa | High-achieving professionals | No Cap / No Lottery | Yes (Employer or Agent) | No annual limits, unlimited 1-3 year extensions |
4. TN Visa Under USMCA | Canadian & Mexican Citizens | No Numerical Cap | Yes (Prearranged job) | Canadians can apply directly at land/airport ports of entry |
5. E-3 Specialty Occupation Visa | Australian Citizens | 10,500 Quota (Rarely filled) | Yes (Specialty occupation) | Spouses get full work authorization incident to status |
6. H-1B1 Specialty Occupation Visa | Chilean & Singaporean Citizens | 6,800 Quota (Separate pool) | Yes (Specialty occupation) | Avoids the primary H-1B cap lottery pool |
7. L-1 Intracompany Transfer | Multinational employees | No Cap / No Lottery | Yes (Related U.S. company) | No lottery; clear pathway for executive/managerial roles |
8. E-2 Treaty Investor Visa | Founders from Treaty Nations | No Cap | No (Direct enterprise) | Start or direct your own U.S. business |
9. EB-2 NIW / EB-1A Self-Petitioned Green Card | Advanced degrees / Exceptional ability | Visa Bulletin Queue | No (Self-petition) | Total independence from employer sponsorship |
Detailed Pathway Breakdown
1. Re-Register on STEM OPT for FY 2028 (Most Common)
If you have remaining STEM OPT validity, your employer can submit a new registration for the FY 2028 cap season in March 2027.
Under the wage-weighted rule, entries are based on OEWS salary levels (Level I = 1 entry; Level IV = 4 entries).
Requires a STEM degree from an SEVP-certified school and an employer enrolled in E-Verify.
Provides up to 24 additional months of work authorization.
2. Cap-Exempt H-1B (No Lottery)
Institutions of higher education, affiliated non-profits, and non-profit or governmental research organizations are exempt from the annual H-1B cap.
Petitions can be filed at any point during the year with premium processing available.
Non-profits pay $0 Asylum Program Fee.
Transitioning to a private cap-subject employer later will require going through the lottery.
3. O-1A Extraordinary Ability Visa (High Achievement)
Designed for individuals who can demonstrate sustained national or international acclaim in science, education, business, or athletics.
Requires meeting at least 3 of 8 regulatory criteria or a major award.
Dual intent friendly (filing an immigrant petition does not automatically cause O-1 denial).
Cannot be self-petitioned (requires a U.S. sponsor or agent).
4. TN Visa Under USMCA (Canada & Mexico)
Streamlined work authorization for Canadian and Mexican professionals working in designated USMCA occupations.
Job offer must align with listed USMCA professional roles (e.g., Computer Systems Analyst, Engineer).
Granted in up to 3-year increments with unlimited extensions.
Non-immigrant intent required (not a direct dual-intent visa).
5. E-3 Specialty Occupation Visa (Australia Only)
A specialty occupation visa exclusive to Australian nationals, backed by a Labor Condition Application (LCA).
Annual limit of 10,500 visas is almost never exhausted.
Spouses can work for any employer without needing a separate EAD.
Renewable in 2-year increments indefinitely.
6. H-1B1 Specialty Occupation Visa (Bhile & Singapore)
Dedicated visa quota allocated specifically for Chilean (1,400) and Singaporean (5,400) citizens.
Requires a DOL-certified LCA.
Granted in 1-year increments with unlimited renewals.
Does not offer formal dual-intent protection.
7. L-1 Intracompany Transfer (Multinational)
Transfers employees from an overseas branch, parent, affiliate, or subsidiary to a related U.S. entity.
Requires working full-time abroad for at least 1 continuous year in the preceding 3 years.
L-1A (Managers/Execs) maxes out at 7 years; L-1B (Specialized Knowledge) at 5 years.
L-2 spouses receive automatic work authorization.
8. E-2 Treaty Investor Visa (Founders)
For entrepreneurs who invest substantial capital into a U.S. business they control and operate.
Requires nationality in a recognized U.S. treaty country.
Capital must be at risk and generating more than a minimal living (non-marginal).
Spouses receive work authorization.
9. EB-2 NIW / EB-1A Self-Petitioned Green Card (Direct Green Card)
Self-petitioned permanent residency pathways that bypass employer job offers and PERM labor certification.
EB-2 NIW requires showing proposed endeavor has substantial merit and national importance.
EB-1A requires showing top tier status in your field.
Note: An approved I-140 does not grant temporary work status; a valid bridge visa is required while waiting for priority dates.
This article is for general informational purposes only and does not constitute legal advice. Immigration and visa rules, especially around travel restrictions, the Diversity Visa program, and processing timelines, have changed unusually rapidly over the past year and remain subject to ongoing litigation. Consult a licensed immigration attorney or the official USCIS and Department of State websites for guidance on your specific situation.