HR Guide: What To Do When an Employee Is Not Selected in the H-1B Lottery

Not every H-1B lottery story ends with good news—and as the HR lead, you’re probably asking:

“Can we still employ this person?”“What happens to their work authorization?”“Are there any long-term options?”

This guide breaks down what to do next, based on whether the employee is currently inside or outside the U.S.—and how to support them through this moment.

👥 If the Employee Is in the U.S.

Most likely, they’re on F-1 OPT or STEM OPT, and this lottery cycle didn’t go their way. Here’s what you can do:

✅ Check their EAD expiration date

You want to know how much time they have left in their work authorization. If they have several months remaining, you have time to:

• Refile in the next H-1B lottery cycle

• Plan for other alternatives like STEM OPT extension or CPT enrollment

✅ Use the STEM OPT extension (if available)

Employees with STEM degrees can get a 24-month extension beyond their first 12 months of OPT. This buys more time and keeps them in status while they try again next year.

✅ Consider Day 1 CPT as a last resort

If their EAD is expiring and they weren’t selected, enrolling in a new degree program that offers Day 1 CPT could allow them to maintain work authorization.

⚠️ Not all CPT programs are equal. Use caution. Encourage the employee to choose a fully accredited university and avoid repeated CPT use (more on this below).

🔗 What Is Day 1 CPT and What HR Should Know

🌍 If the Employee Is Outside the U.S.

✅ Keep them employed remotely

If your company allows it, continuing their employment from abroad while they await the next lottery is a practical option.

✅ Explore an L-1 visa (intra-company transfer)

If they’ve worked for your company abroad for at least one year, and you have a U.S. entity, you might be able to transfer them on an L-1 visa.

✅ Try again next year

Many employees aren’t selected on the first try. Some HR teams support employees abroad for a year or two while continuing to reapply each cycle.

💬 Common Questions from HR Teams

We hear these a lot. Here are straight answers you can use with your team or leadership:

❓Can we hire or retain an employee who is on Day 1 CPT?

✅ Yes, as long as they maintain valid status and are authorized for employment under their new academic program.

But proceed carefully:

• Ask for updated I-20 documents showing CPT approval.

• Make sure the job duties are relevant to their new program of study.

• Avoid repeated CPT enrollments (see below).

❓Can we start the green card process for someone who wasn’t selected in the H-1B lottery?

✅ Yes, but with some important caveats:

• If the employee is still in valid status (like STEM OPT or Day 1 CPT), you can start a PERM green card process.

• However, they must maintain valid status until they are eligible to file the I-485 (Adjustment of Status).

⏳ How long does it take?

• For non-Indian and non-Chinese nationals: The entire green card process can often be completed in 36–48 months, assuming there’s no backlog in the EB-2 or EB-3 categories.

• For Indian and Chinese nationals: Backlogs are significant. Even after PERM and I-140 approval, they may wait years to become eligible to file for adjustment of status.

⚠️ The green card process is not a short-term solution. It’s a powerful long-term retention strategy, but only if the employee can remain in status during the wait.

❓Can the employee travel to their home country if they’re in the green card process but were not selected in the H-1B lottery?

✅ Maybe—but only if they are still in valid F-1 or CPT status, and they have a valid visa stamp to return.

❌ If their current visa stamp has expired, they likely can’t re-enter the U.S. without going through a visa interview abroad—which can be risky if they are on CPT or nearing the end of OPT.

Also:

• Starting a green card process doesn’t grant travel benefits.

• Unless they’re eligible for Advance Parole (which they won’t be if the I-485 hasn’t been filed), travel carries risk.

💡 Recommendation: Have them speak to immigration counsel before planning any international trip.

❓Can they repeat the same Day 1 CPT degree again?

❌ No. USCIS takes the position that repeating the same degree level to extend CPT work authorization is an abuse of the system.

For example:

• If they already did a Master’s with CPT and try to enroll in another CPT-eligible Master’s at the same level, it may raise red flags.

Encourage them to:

• Choose a different degree level (e.g., move from Master’s to PhD),

• Or find a different strategy that doesn't rely on repeated CPT use.

🎯 HR’s Role: Keep Them in Status, Keep Them Supported

Your support during this time matters. Here’s a quick list of what you can do as HR:

✅ Track immigration timelines (EAD expiration, STEM eligibility)

✅ Coordinate with legal counsel for CPT or green card planning

✅ Offer flexibility on remote work or intra-company transfers

✅ Have honest conversations about risk and next steps

✅ Communicate leadership’s commitment to retaining international talent

Final Thoughts

Not being selected in the H-1B lottery is a setback—but not a dead end. With thoughtful planning, your company can retain valuable foreign national talent, while keeping them in valid status and on a path to long-term immigration stability.

Whether it's Day 1 CPT, a green card strategy, or reapplying next year, the key is staying proactive—and human.

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Note: This document provides general information and should not be considered legal advice. Immigration policies change frequently, and individual circumstances vary. Both employers and employees should consult with qualified immigration counsel regarding specific situations.