MVP “Immigration Q & A Forum” – 4/4/25

1. I was not chosen in the lottery process for FY2026 with H-1B employment to start 10/01/2025. My current OPT expires in July 2025. I graduated with a master’s degree in computer science.  What are my options?

Generally, a U.S. degree in Computer Science would be classified as a STEM degree. You should consult your Designated School Official (DSO) and carefully review your I-20 form against the ICE STEM Degree Field list to determine if you are eligible for a STEM OPT. A STEM OPT would provide an additional 24 months of work authorization allowing you additional opportunities to submit a registration under the H-1B CAP registration process. To qualify for STEM OPT, your employer would need to be enrolled in E-Verify and also willing to enter into a Training Agreement with you.

2. My registration was not selected. I am currently on an H4 dependent visa. What are my options?

There will likely be another random lottery selection process conducted by USCIS in late July/early August 2025, so you may have one more opportunity to be selected for the H-1B CAP registration process for FY2026.

As long as your Spouse or Parent remains in a valid H-1B nonimmigrant visa status, you may be eligible to extend your H4 dependent status along with their status. If the primary H-1B applicant is your parent and you are under the age of 21, you will be eligible for extensions of your H4 dependent status until you reach 21. Once you turn 21, you will need to find another nonimmigrant visa status to remain in a lawful status in the United States. Changing status from H4 to F1 may be a possibility.

There are several additional options that may be available to you, as you did not provide enough information to conduct a full analysis. It would be advisable to speak with a qualified Immigration Attorney to thorough evaluate all your options.

3. How do we increase our chances of our candidate’s registration being selected next year?

Unfortunately, there is not anything that you can do to strengthen your chances of being selected. This is a random lottery selection process. It is literally like playing the lottery; you may win, or you may lose.  By submitting the registration, you are taking that chance.

The only information entered into the system is: Candidate’s name, date of birth, country of birth, country of citizenship/nationality, passport #, passport expiration date, and whether or not they have a U.S. master’s or higher degree. That is it, there is no case identifying information entered nor a position title, employer name, SOC code, or job duties provided. 

4. Would the O1 visa be an option for me?

Without further information, we cannot fully analyze which nonimmigrant visa options could possibly be viable for you. It is recommended that you schedule a consultation with an experienced Immigration Attorney.

The O-1 nonimmigrant visa is reserved for those with Extra-ordinary ability in the Sciences, Arts, Education, Business or Athletics and for those who have demonstrated records of extraordinary achievement in the Motion Picture or Television Industry. To be considered an outstanding individual, an applicant should be highly regarded in their particular field and may only work in the U.S. in that specific area of expertise. This visa enables individuals with extraordinary ability in the sciences, arts, education, business, athletics, motion picture and television industry to enter the U.S. for temporary periods of time. USCIS loosely defines this category, and the spectrum of eligible individuals also includes chefs, carpenters and lecturers. The O-1 Visa must be petitioned by a US employer, U.S. agent or foreign employer through a U.S. agent. The spouse and/or children (under 21) may join the applicant in the U.S. under O-3 dependent status. While they may not work while in the U.S., immediate family members are allowed to attend school or college. To qualify for an O-1 a person must demonstrate either of the following:

      a. Receipt of a major, internationally-recognized award (e.g. the Nobel Prize), or at least three (3)* of the following apply to him/her:

          i. Receipt of nationally or internationally recognized prizes or awards for excellence in his/her field.

          ii. Membership in an association in the field which requires outstanding achievements of its members, as judged by national or international experts in the field.

          iii. Published material in professional or major trade publications or major media about the person, concerning the person’s work in the field.

          iv. Participation on a panel, or individually, as a judge of the work of others in the field.

          v. Scientific, scholarly, or business-related contributions of major significance in the field.

          vi. Authorship of scholarly articles in the field in professional journals or other major media.

          vii. Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

          viii. High salary or other remuneration commanded by the person for services.

5. What is the E3 visa?

The E3 visa classification is limited to Australian Professionals. The E-3 visa is a “specialty occupation” visa similar to the H-1B visa. Therefore, to be eligible for the visa, the Australian national must possess a bachelor’s degree or higher (or its equivalent) in the specialty and the specialty occupation must require the degree. There is a 10,500 annual limit on the E-3 visa.

6. My case wasn’t selected for the H-1B CAP. I am working on my STEM OPT valid through 01/31/2027, what options do I have?

You will likely have at least one more attempt at being selected in the H-1B CAP registration process for FY2026 in late July/early August 2025 as a result of not enough H-1B CAP petitions being filed between April 1, 2025 and June 30, 2025.

You will be eligible to submit a new H-1B CAP registration in the FY2027 process, opening in March of 2026. If not chosen in the initial random lottery selection process at the end of March 2026, you will likely have at least one more chance of being selected in late July/early August 2026.

If not chosen in the H-1B CAP registration process, you may be eligible for an H-1B CAP exempt petition if you find a U.S. employer sponsor who has a bona fide offer of employment and qualifies as an H-1B exempt employer: Institutions of Higher Education as defined in Section 101(a) of the Higher Education Act of 1965; Non-profit entities related or affiliated with a Higher Education Institution; nonprofit research organizations or governmental research organizations as defined in 8 CFR 214.2(h)(19)(iii)(C).

If you have a bona fide job opportunity, a U.S. employer sponsor may initiate the Employment Based Green Card sponsorship process on your behalf; although this process does not give you any lawful status until your priority date becomes current and you successfully file a I-485 petition with the USCIS. It is imperative to have an underlying nonimmigrant visa status to be able to file the I-485 from within the United States.

It is recommended that you schedule a consultation with an experienced Immigration Attorney to fully evaluate all of your options.

7. I normally have tons of questions that arise when completing Form I-9. Is there any resource that you recommend that could help answer my questions without having to call our Attorney every time I have a question.

Yes, the USCIS I-9 Employer Handbook is a excellent resource.

8. Will complying with this new registration requirement give me any lawful status or benefit?

NO! At this time, a lawsuit has been filed against the U.S. government concerning the registration requirement. The registration requirement will NOT provide any lawful status or immigration benefit. The registration requirement will be used as an enforcement tool. The registration requirement was set to go into effect as of 04/11/2025. We will keep our readers posted as to the status/outcome of the pending lawsuit.

9. As a US Citizen who submitted an I-864 Affidavit on behalf of my Spouse, am I required to update my address with the USCIS if I move?

Yes, you will need to file Form I-865 with the USCIS.

10. I have an employee who just graduated from a U.S. university and presented her F1 OPT EAD to work. I am working on bringing her onboard and completing her paperwork. As it relates to her payroll, as an F1 student is she exempt from paying Social Security Tax and Medicare Tax?

Generally yes; however, it requires a case-by-case analysis of the foreign student’s immigration history in the United States. The IRS website provides helpful information.