H-1B Lottery Insights Part 2: Filing Options and Key Strategies for FY2026

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Kara Lancaster: Welcome to part two of our immigration podcast on H-1B Visa applications. I’m Kara Lancaster, a shareholder in our Raleigh office. I’m here with Meagan Dziura, who is a senior attorney also in Ogletree’s, Raleigh office.

Meagan Dziura: Kara, if someone is selected in the H-1B lottery, how are they filing the H-1B? What is the typical process for that?

Kara Lancaster: There’s two different options for how we file the H-1B petition for those who are selected. The first option is known as a change of status, and this means that you’re requesting USCIS to automatically switch your underlying visa status from the existing visa to H-1B within the United States. And so, in order to request a change of status, the individual does have to be physically inside the United States at the time that the petition is filed. So again, we have some flexibility there. There’s the 90-day window of when we file, so usually from April 1st to June 30th. And so, they need to be inside the United States not only on the day that we file, but also while the application is being processed, so up until the petition is approved.

A lot of times foreign national employees will have questions around how long that period is. How long is this travel restriction period? And it depends, right? It depends on how long USCIS takes to approve the petition. You can have a little bit more control over that time period if the employer is filing under premium processing, where we get an update from USCIS within 15 business days, but under regular processing, it could be several months. Even with premium, there’s always a chance of receiving a request for additional evidence that can extend the time period before we get the approval. So that’s the main thing we’re always highlighting with a change of status is that the individual needs to be able to stay in the U.S. while that application is being processed. But once it’s approved either on or after October 1st, that is when their status will automatically change over to H-1B. So again, October 1st is usually the date that it will switch, but if for some reason the process extended beyond that, then it would be on whatever date the petition is approved.

If that individual then travels outside the U.S. after their status has already changed over to H-1B, then they will apply for the H-1B visa in their passport from a U.S. embassy before returning to the United States. One exception to this would be for Canadian nationals since they are visa-exempt, but everyone else would want to make sure they get that visa in their passport from a U.S. embassy or consulate. And so, that’s also one, I would say, misconception there is that choosing a change of status doesn’t mean you’re not going to have to get the visa in your passport the next time you travel. It just means that you were already holding H-1B status in the U.S. before you traveled.

So then, that brings me to the second filing option, which is referred to as consular notification or consular processing. If we file the H-1B petition with a request for consular notification, there are no travel restrictions because we are essentially saying to USCIS that we want this petition to be approved and only be activated if the individual chooses to activate it at a U.S. embassy or consulate overseas. And so, when we file the petition this way, the individual will remain in their current visa status beyond October 1st. They’ll remain in that status until they get that H-1B visa stamp in their passport and travel back to the U.S.

A lot of times clients will have policies around this in the sense that if somebody opts for consular notification, then it will be their responsibility to make that travel plan in the future to activate the H-1B, a lot of times maybe before their current visa or work authorization expires. And then the one other note here is that the individual cannot enter the U.S. more than 10 days prior to the start of the H-1B validity. And so, if for some reason somebody chose consular notification but did want to activate it fairly soon, they just want to make sure they don’t try to activate it too early because the soonest they can come into the U.S. is 10 days before that start date, which again is usually October 1st.

But a lot of times we see people choose consular notification for two main reasons. One would be because they have a lot of travel plans between April and June. Sometimes, we can work around those travel plans. If somebody has travel in April, we could say, okay, that’s fine. We’ll file in May or June. But if they just have a lot of travel throughout that period and they just don’t want to worry about being restricted, sometimes they prefer consular notification and they say, “Okay, I understand it’s on me to activate this H-1B overseas at a consulate.”

The other reason that we see a lot is if somebody’s spouse is working on a dependent visa. A lot of times L-1 employees have a spouse working in L-2 status, and so there are some considerations and hurdles sometimes to an H-4 spouse obtaining work authorization. And so, those employees might decide, “Let me just stay an L-1 status for now. We’ll get the H-1B approval, and we will figure out a time that makes sense to activate it and switch over to H-1B and H-4 dependent status at a future date.”

And so, that’s something that we often see in terms of why people choose consular notification. Otherwise, a change of status is pretty common outside of those scenarios, especially for F-1 students, anyone that knows they’re going to need to switch over to the H-1B in order to stay work authorized to stay in the U.S., a lot of times those individuals will choose a change of status so that they know it’s done, they’re already an H-1B status, and it happens automatically within the U.S. without them having to do anything else.

Meagan Dziura: Yeah, and you mentioned F-1 students, so reasons why F-1 students would be one of the main cap candidates for companies is because they do get work authorization, or they can get work authorization after they graduate from a U.S. university, but that is a limited work authorization. It’s typically only one year. They may get a two-year extension if they’re working, or if they graduated in a STEM field, but after that, they would need to look for employment-sponsored immigration. So, a lot of the cap candidates we see are F-1 students, and the degree completion requirements for that, they must have completed the requirements for the degree prior to filing the H-1B. It doesn’t have to be prior to the registration period. So that’s an important distinction, and like I said, usually, the final file date is June 30th.

There’s also a special provision that is provided for F-1 students, and this is so that F-1 students, if their work authorization is expiring before that October 1st date that Kara mentioned for change of status, H-1B cap petitions, if their work authorization is expiring before that, as long as their H-1B cap petition is filed while they’re still work authorized, their work authorization is automatically extended up until September 30th, so the day before that October 1st date. So, it’s a special consideration for F-1s. It’s something that companies and something that Ogletree definitely looks at for the F-1 population because even though the filing, the general filing 90-day period usually ends at the end of June, some F-1 students may need to have that petition filed basically immediately. So, something to really, really consider to make sure there’s not a gap in employment for F-1 students.

We also usually recommend that F-1 students do that change of status petition and avoid the international travel. It can become tricky just because the F-1 you do usually need to have that valid visa, you need to have an I-20 that’s endorsed for travel. Typically, you would need your EAD approved as well. There’s just a lot of extra hurdles for an F-1. And then, if they don’t have the ability to come back into the U.S. until they get that H-1B, they, of course, have to wait for that approval. And like Kara said, they would need to visit a consulate, and they can’t enter the U.S. until they’re 10 days before that ten one date. So again, typically we recommend the F-1s do a change of status petition for the H-1B filing.

Another group of employees that we are looking at for the cap registrants is the L-1 visa. Kara mentioned this in the beginning. The L-1, they have strict maximum time limits in U.S. For L-1B, that maximum stay is five years. And for an L-1A, which is the managerial visa, the maximum stay is seven years. Back in the day, green cards, if an employer wanted to sponsor an L-1 for a green card, five years may be plenty of time for them to go through a perm-based green card process. In L-1A, the wait times were much shorter if you wanted to do an EB-1 green card for a manager. Most birth categories were current for EB-1s, and that’s just not the case anymore. PERM is also becoming more and more difficult just because there are so many people looking for jobs right now. It’s much harder to certify that you did not find a well and qualified able US worker. It’s becoming just harder to get a green card within these time restrictions of five and seven years.

So, because the H-1B is more flexible since you can extend it past its six-year limit if you reach a certain point in the green card process, a lot of companies are now considering putting Ls in the H-1B lottery that they may not have considered before. This is probably one of the main questions that I get at least with my clients, is when we reach out to people on L visas and say, “Hey, your company has authorized us to put you in the H-1B lottery,” they say, “Why, I’m on an L?” And then we have to explain how long the timelines are for a green card, to wait for a green card, and just how uncertain certain green card processes are, like the PERM process.

So we really do want to have that backup H-1B for them, even if they’re not switching immediately, like a change of status, we do recommend an H-1B as an option in case they do need to switch over because they’re running out of L time because, again, that L cannot be extended past the limits unless they go abroad, stay for a year and come back. So that’s something that we are really encouraging clients to look at this year. Last year, we definitely encouraged it, as well. And likely going forward, we would continue to encourage it just because it’s unlikely that the green card process will become any shorter or easier.

So, Kara, can you talk about some of the other visa types and why we would consider or why would we encourage employers to consider putting them into the H-1B lottery?

Kara Lancaster: Yeah, obviously the F-1 students and the L-1 visa holders I would say tend to be the largest groups, but there are some other visa types that we see commonly go into the lottery. So, visas like the TN for Canadian and Mexican nationals, the E-3 visa for Australian nationals and H-1B ones, which is for nationals of Singapore and Chile. These are treaty visas. And so, one reason that we often have clients put these individuals into the lottery is because treaties could be changed, especially when we’re changing administrations in the U.S. We don’t necessarily have any concrete reason to think that those treaties would be changed or removed, but it is always possible. And so just to, again, always have a backup option. The H-1B is something that would give them that backup in case something were to change with the underlying treaty associated with their visa.

The other common reason, and I would say the bigger reason is what we talked about before, immigrant intent. And so, these treaty visas, the TN, E-3, H-1B one, they do not allow for dual intent. They do not allow for immigrant intent in terms of planning on staying in the U.S. permanently. And it’s a little bit tricky because these visas don’t have hard limits like the L-1 visa for example. So sometimes there’s a misconception that they can be renewed forever. And that’s half true because there is no regulatory limit on how many times they can be extended, but ultimately, the intention behind these visas is for the individual to be in the U.S. temporarily. They are supposed to intend on returning to their home country eventually.

And so, if that’s not the case, if plans change and they do prefer to pursue permanent residence in the U.S. or think that they might want to do that, then switching over to the H-1B allows them to have that dual intent. It allows for them to plan on staying in the U.S. on a permanent basis. And it’s usually, again, the first step to then pursuing permanent residency.

Meagan Dziura: I’ll also just add with the O-1 visa, which is a little more, we usually call it quasi dual intent, it has a little less restrictions than some of the treaty visas, but the O-1, it can be extended indefinitely, but only in one-year increments when you’re in the U.S., extending with USCIS. And because of that, a lot of employers opt to put people who are in O-1 status into the H-1B cap because the O-1 is also usually a large undertaking. It can be a really large petition. It’s for those who are essentially of extraordinary or outstanding ability. So the O-1, to have to renew that every year can be burdensome for employers. So the O-1 is another one that we sometimes see go into the H-1B lottery.

I talked a lot about the announcement that the fiscal year 2025 lottery was officially closed in December. This is because they had a second round of selections. And when USCIS has additional slots open after the first round, they look at how many people actually used those selected slots. And sometimes, they have allocated those other slots, and people haven’t used them. So, they do sometimes have multiple lottery rounds. The past two years, we did have additional rounds. There have been additional rounds over the past five years, but the past two years, we have had additional rounds. So, it’s never concrete. We can never predict that there will be an additional round this next upcoming year. It wouldn’t be announced until after the initial lottery is finished. Usually not announced until they see how many filings are actually collected, but like we said, the last two years, they have had additional rounds. So that’s always a possibility, and we usually don’t get a huge heads up about it. Sometimes, USCIS literally just starts changing the status of in their USAS registration. So, it’s something that we’re always looking out for to see if there’s any indication that USAS has started making new selections past June 30th.

That’s basically our prep guidelines. We’ll likely be doing another episode once the H-1B lottery is closed, where we’ll talk about alternative options for employees that weren’t selected. So, you can look for that after April 2025.

Thank you, Kara, for being here.

Kara Lancaster: Yeah, thanks.

Meagan Dziura: Thanks so much for listening. Bye, everyone.

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