No H-1B Approval? A Detailed Explanation of O-1 & Past Cases

The H-1B quota, including both the 65,000 standard quota and 20,000 advanced degree quota, for fiscal year 2009 ran out on April 7, 2008. USCIS ran a random selection program to determine which petitions would be selected for the quota. Some applicants will not be able to get an H-1B visa for the fiscal year 2009. For these aliens, an O-1 visa might be a good solution.

In this article, we will provide a detailed explanation of the O-1 visa and list some successful cases for your reference.

What is an O-1 Visa?

O-1 is a nonimmigrant status category for aliens of extraordinary ability in the sciences, the arts (including the television and motion picture industry), education, business, and athletics. This is an employment-related status that allows qualified aliens to live and work in the United States. An O-1 petition is sponsored by an American employer.

There is no set maximum period for O-1 status. Theoretically, it can be indefinite. However, the length of the status is determined by the length of time needed for the alien to perform his duties or activities for the employer. Usually, an initial stay is limited to no more than three years. This period may be extended in one-year increments thereafter, based on evidence showing that the alien's continued presence would be required.

Qualifications for O-1 Applications

Qualifications for O-1 status vary depending on the area of work, e.g. arts, sciences, etc. We will focus the discussion on aliens in the sciences, education, business, and athletics. This category will apply to the majority of our readers who cannot get an H-1B visa.

For these fields, the alien must show that he or she is at the top of the respective field. This can be established through evidence of receipt of a major, internationally recognized award, such as a Nobel Prize. In the absence of such an award (i.e., for most of our clients), an alien can establish him or herself as a qualifying alien through at least three of the following types of evidence:

1. Documentation of receipt of lesser nationally (not necessarily U.S.) or internationally recognized prizes or awards for excellence in the field of endeavor
2. Documentation of membership in associations in the field of endeavor which require outstanding achievements of their members, as judged by recognized national or international experts in their fields
3. Published material in professional or major trade publication or in the major media about the alien and relating to the alien's work in the field of endeavor
4. Evidence of participation as a judge (individually or as a part of a panel) of the work of others in the alien's field
5. Evidence of scientific, scholarly, or business related contributions of major significance in the field of endeavor
6. Evidence of authorship of scholarly articles in the field, in professional journals or other major media
7. Evidence of performance in a critical or essential capacity for organizations or establishments with distinguished reputations
8. Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others
9. Other comparable evidence

The Advantages of an O-1 Visa

1. O-1 applicants are not subject to any cap or quota. Each case is considered on its individual merits; the total number of O-1 applicants that year does not affect one’s chance of approval.
2. There is no maximum period of time a single person can hold an O-1 visa. It is theoretically possible to extend an O-1 visa indefinitely—as long as the employer needs the alien to perform his or her duties. Furthermore, aliens who have already held an H-1B for the maximum six years can apply for an O-1 visa if they wish to prolong their stay in the United States.
3. O-1 visas apply to more work areas than H-1B visas. H-1B visas are only for skilled professionals and do not apply to entertainers or athletes.
4. There are no education (or experience) requirements for O-1 petitions. The alien must be an expert, but there are no specific requirements as to how that alien has become an expert.

Our Experience

In our experience, we have seen that many aliens with master’s and/or doctorate degrees possess one or more of the qualifications listed above. An experienced attorney can play an important role in an O-1 petition by demonstrating how an individual client is qualified for an O-1 visa.

In addition, O-1 visa and EB-1(a) green card applications share some similar requirements. Therefore, an O-1 applicant may simultaneously submit an EB-1(a) green card application. Of course, it is easier to obtain an O-1 visa than an EB-1(a) green card.

If you do not get an H-1B visa this year, you should consider filing an O-1 application. You may have some of the qualifications required for an O-1 visa. If you’re not sure whether you’re qualified, we can provide you with a free evaluation.


We have helped many clients successfully apply for O-1 visas in the past 12 years. We have accumulated ample experience in this area. These O-1 cases are relevant to many different situations. We strongly suggest you read the following cases. You might find situations that are similar to yours—maybe you’re qualified for an O-1 visa too.

Case 1: I-140 Denied, H1B to Expire Soon, What to Do?

Case 2: IT Professional’s O-1 Visa Application Approved Within a Week

Case 3: O-1 Case Approved Within a Week

For many people, an O-1 visa is a good alternative to an H-1B visa. O-1 is a nonimmigrant status category for aliens of extraordinary ability in the sciences, the arts, education, business, or athletics. It allows qualified aliens to live and work in the United States. Our experienced attorneys can help you apply for an O-1 visa. If you want to apply for an O-1 visa, email Attorney Jerry Zhang ( ) with your questions, and he will get back to you quickly—typically within 24 hours.

Zhang & Associates, PC.
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Tel:1-800-230-7040, 713-771-8433


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