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The H-1B Question Every Professional Should Ask; And Can Only Get Answered by Their Own Attorney.
To close the Month 2 series, here is the single most useful question an H-1B professional can ask heading into registration season; one most have never had answered. It isn’t “Did my employer register me?” Your employer’s attorney handles that. It’s this: “If I’m not selected in the lottery, what are my options; and which of those does my employer’s attorney have a duty to pursue, versus which ones are mine to pursue independently?” Answering that well takes independent counsel, and it’s one of the more useful pieces of immigration planning a professional can do ahead of registration.
Thinking Through a Possible Non-Selection Before the Lottery Runs Is an Easy Thing to Skip; and a Useful One to Do.
If you’re not selected, your employer has options aimed at protecting the company’s workforce plan: a cap-exempt transfer if one is available, an O-1A petition if the employer is willing to sponsor it, or simply waiting for next year’s registration. Those are the company’s options as an employer. They aren’t automatically your best options as an individual, and the employer’s attorney’s analysis of them centers on the company’s interests. Your own analysis of the same moment can produce a different answer; one focused on what protects your immigration security and career flexibility, whether or not that aligns with what the company would prefer.
Options that belong to your independent counsel engagement specifically: a self-sponsored O-1A petition based on your individual record, which doesn’t require your current employer’s cooperation to evaluate. An EB-1A extraordinary ability self-petition, filed on your own record while you remain in valid status. A National Interest Waiver self-petition under the Matter of Dhanasar framework, which allows EB-2 classification without a job offer or labor certification. An F-1 OPT extension, if applicable based on your academic history. Treaty-based classifications such as TN, E-3, or H-1B1, if you hold citizenship in a qualifying country. Each pathway has its own eligibility standard, timeline, and relationship to your current employer, and each is worth evaluating on its own facts.
Registration closes on a fixed deadline. The right time for this conversation is before results, not after.
Your Employer Has a Lawyer for This. Shouldn’t You? → Book Your Confidential Case Review
Ismail Shahtakhtinski · Founder & Managing Attorney
I.S. Law Firm · Founder and Investor Immigration
Confidential One-on-One Strategy Review
P.: (703) 527-1779
W.: islawfirm.com
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