It’s often the case that a professional wanting to relocate to the United States technically qualifies for several nonimmigrant work visas. Choosing the visa that is best for your individual situation can greatly increase the chances that your application will meet with success. Variables such as yearly quotas, visa time limits, and residency requirements can make all the difference between approval and admission to the U.S., on the one hand, and denial, on the other.
With respect to the H-1B visa in particular, alien workers may find it more beneficial to apply for an H-1B instead of an O-1 visa, or the other way around. This article is devoted to exploring the choice between an H-1B and O-1.
There’s some overlap between O-1 and H-1B visas, principally with respect to the nature of the professional occupation of the alien and his or her credentials.
Broadly speaking, the H-1B visa allows foreign professionals in specialty occupations to come to the U.S. temporarily to work for a U.S. employer. H-1B holders typically work in such fields as engineering, mathematics, computer programming, biotechnology, and business, among other professional fields.
The O-1 visa is reserved for so-called aliens of “extraordinary ability” in similar fields: the sciences, arts (including television and motion pictures), business, and athletics. For this classification, “extraordinary ability” refers to the fact that an alien has shown, through evidence such as scholarly publications or proof of high salary, that he is at the top of his professional field. Accordingly, foreign workers hoping to earn H-1B status by virtue of their work in such fields may qualify for an O-1 visa, provided they’re able to demonstrate, with sufficient documentary evidence, their extraordinary ability.
Both visa classifications are “dual intent,” meaning that there’s no prohibition on an alien using an H-1B or O-1 as a springboard to permanent residency. Additionally, the H-1B and O-1 are both employer-sponsored visas. Each allows spouses and children to accompany the primary visa holder, too.
Advantages of the O-1 over the H-1B
Below we have outlined some typical reasons why an alien seeking to relocate to the U.S. on the basis of employment may find it more beneficial to apply for an O-1 rather than an H-1B.
No Annual Quota
The H-1B category has an annual quota of 65,000, with an additional 20,000 reserved for foreign workers with at least a master’s degree from a U.S. university. Other applicants may qualify for H-1B visas that are not included in that quota if they meet the criteria for cap-exempt H-1B workers.
Given the numerical limitations, H-1B visas tend to run out soon after the filing period opens at the beginning of April. The O-1 visa, however, has no annual quota and is always available to those who meet the qualifications. As such, an alien may find it beneficial to apply for an O-1 visa, particularly if the H-1B quota for the year has already been met.
No Six-year Time Limit
An H-1B visa is initially authorized for a period of three years. H-1B holders can extend their status for an additional three years thereafter, for a total possible period of six years. Although there are some exceptions, after six years, aliens with exhausted H-1B status must leave the country for one year before being eligible to apply for a new H-1B.
The O-1 visa, on the other hand, is granted for an initial period of up to three years, with the option to extend status in increments of one year. U.S. Citizenship and Immigration Services (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 USCIS finds that it is necessary for him or her to remain in the country to do the specific activity required by his or her U.S. employer. This may make the O-1 a more attractive option for some immigrants hoping to stay in the U.S. for longer than six years.
No J-1 Foreign Residency Requirement
Many J-1 exchange visitors are subject to a two-year foreign residency requirement, meaning they must return to their home countries for two years upon completion of their J-1 status before they are eligible to apply for H or L status, or to adjust to permanent resident status.
However, these aliens can 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 aliens currently or recently in J-1 status. It is important to keep in mind that although an alien may be able to work temporarily in the United States on an O-1 following the completion of her J-1 program, she will still not be eligible to adjust to permanent resident status without first either completing the foreign residency requirement or petitioning for it to be waived. (For more information on the J-1 foreign residency requirement, click here.)
For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:
General H-1B Topics