Oftentimes a professional coming to the United States may technically qualify for several different working non-immigrant visas due to their academic, professional, or award-winning qualifications. Picking the correct visa to apply for can greatly increase the chances for some of getting their visa application approved. Variables such as yearly quotas, visa time limits, and residency requirements may all make a difference in picking the correct visa. Depending on their situation, an alien may find it more beneficial to apply for an H-1B instead of an O-1, or the other way around.
The O-1 and H-1B visas can often have common eligibility characteristics. The H-1B visa allows foreign professionals in specialty occupations to come to the United States temporarily to work for a U.S. employer. H-1B workers often work in fields including engineering, mathematics, science, biotechnology, businesses, etc. The O-1 visa is for aliens of extraordinary ability in the sciences, arts (including television and motion pictures), business or athletics. Extraordinary ability means that they have shown, through evidence such as scholarly publications or proof of high salary that they are at the top of their respective field. An alien seeking an H-1B visa in the science field may also be able to qualify for an O-1 visa, if they can provide the necessary documentation of their extraordinary ability.
Other similarities between the two visas that might make them both attractive options include that they are both dual intent, employer-sponsored, and allow for spouses and children to accompany the primary visa holder.
Please visit our web pages for further information on O-1 and H-1B.
Below we have outlined some common reasons why an alien seeking to come to the United States on an employment-based visa may find it more beneficial to apply for O-1 over H-1B.
The H-1B visa has an annual quota of 65,000. Only a few thousand applicants may qualify for additional H-1B visas that are not included in that quota, if they meet the criteria for cap-exempt H-1B workers. Therefore, H-1B visas often run out before the end of the fiscal year and it may not be possible to obtain one in all cases. The O-1 visa, however, has no annual quota and is always available to those that meet the qualifications. For this reason, an alien may choose to apply for an O-1 visa if the H-1B quota for the year has already been filled.
An H-1B visa is initially available for a period of three years, with options to extend it for two years and occasionally another year beyond that, for a total possible period of six years. Beyond those six years the H-1B worker will no longer be in legal status and there are very few instances where an H-1B can be extended beyond 6 years. For more information on ways to extend H-1B status beyond six years, please click here.
The O-1 visa, on the other hand, is granted for an initial period of up to three years with options to extend status in increments of one year. The USCIS grants O-1 visas for time periods determined by the nature of the alien’s work in the United States. Theoretically, an alien’s O-1 status could be extended indefinitely, as long as the USCIS finds that it is necessary for them to continue to do the specific activity required by their employer. This may make O-1 a more attractive option than H-1B for some immigrants.
Many of those who are in the United States on J-1 Exchange Visitor status are subject to a two years foreign residency requirement, meaning they must return to their home country for two years upon completion of their J-1 status before they are eligible to apply for H or L status or adjust to permanent resident status. However, they may return to the United States on another type of visa such as O-1 without having first fulfilled their foreign residency requirement. This may make O-1 a more attractive option for those who were hoping to stay in the United States on an H-1B visa. However, it is important to keep in mind that although the alien may be able to work temporarily in the United States on an O-1 following the completion of their J-1 program, they will still not be able to adjust to permanent resident status without first either completing the foreign residency requirement or getting it waived. For more information on the J-1 foreign residency requirement, please click here.
(Updated 10/10/2012 by AG)
For more information on the O-1 visa, please click one of the following links: