An H-1B visa is the standard non-immigrant visa that a U.S. employer will apply for when sponsoring skilled foreign workers.
However, the H-1B visa does have several restrictions and limitations, meaning it may not always be the best option for the foreign employee. Deciding on the correct visa to apply for is crucial, as it can be the deciding factor as to whether the application gets approved or not.
Factors such as residency status, yearly caps and quotas, and time restrictions are important when determining which type of visa application to submit. This is why, for the foreign internationals who meet the specific qualifications, a better choice might be to apply for an O-1 visa instead of the standard H-1B.
Differences between the O-1 and the H-1B
As mentioned in previous posts, the H-1B grants foreign workers in specialty occupations like science, biotechnology, and engineering the right to work for a U.S. company. The O-1 visa, by contrast, is set aside for foreign employees who demonstrate extraordinary talent and aptitude in the arts, sciences, athletics, or business.
The foreign worker would have to demonstrate that they are among the elite in their field through awards, high salary, recognition, or academic documentation. Like the H-1B visa, the O-1 is employer-sponsored, and children and spouses are allowed to accompany the visa holder.
Advantages of the 0-1 Visa
In some cases, a foreign worker who wishes to work for a U.S. employer may find it more helpful to submit an O-1 visa application as opposed to an H-1B. An O-1B visa does indeed hold several advantages, which are listed as follows:
- Lack of yearly quota – The H-1B has a yearly quota of 65,000 in the regular cap category and 20,000 in the U.S. masters cap category. If an H-1B visa is applied for later in the fiscal year, all of the slots may already be filled. The O-1 does not have a yearly quota, and remains available to anyone who satisfies the criteria. Should they have the necessary qualifications, a foreign worker may choose to apply for the 0-1 visa to avoid the H-1B number restriction.
- No six year time cap – Initially, an H-1B visa application is approved for three years. Should the foreign employee require it, they can request extensions up to three additional years, after which they will have exhausted their eligibility under that visa status. The O-1 is also granted for three years initially as well, but it can be extended indefinitely. As long as the foreign employee continues to pursue their primary purpose, there is no limit to how long they can stay and work under the O-1.
- J-1 Residency – For many J-1 Exchange Visitors, they must return to their home country for two years when their J-1 status has ended prior to applying for L or H status. In some cases, however, they can then apply for O-1 status under which they would be able to bypass the two year foreign residency requirement. This workaround is only temporary, though, as the residency status must still be met eventually, or be waived.
- Work flexibility – The H-1B is employer specific, meaning that a foreign worker can only work for the employer who has filed the H-1B. The O-1 can be filed in a manner that would allow a foreign national to work for numerous organizations throughout the duration of their O-1.
In the end, it’s up to the foreign employee to evaluate their own credentials, and decide whether they should apply for a standard H-1B or the more exclusive O-1. The O-1 status holds several advantages, and if you qualify, it’s a great option to explore.
For more information on the O-1 Visa and H-1B Visa, contact Lightman Law Firm at (212) 643-0985 or submit a consultation request online.
Lightman Law Firm was recently honored as New York’s 2014 Immigration Law Firm of the Year by Acquisition International. Additionally, founding attorney, Douglas Lightman, was named a “Rising Star” by SuperLawyers.com. Lightman Law Firm also carries a 4.9 rating on Google Reviews.
