The O-1 Visa as an Alternative to H-1B

Introduction

Getting an H-1B visa can be challenging. U.S. Citizenship and Immigration Services (USCIS) received approximately 124,000 H-1B petitions during the filing period, which began on April 1, 2013. In just five days, USCIS reached the statutory H-1B cap of 65,000 for fiscal year 2014. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. So, those wishing to apply for a cap-subject H-1B will need to wait until April 1, 2014.

The O-1 nonimmigrant visa can be a viable alternative to the H-1B. Like the H-1B, it requires an employer to serve as the petitioner and allows immigrant intent. The O-1 is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
The O nonimmigrant classification is commonly referred to as:

  • O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry);
  • O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry;

 

General Eligibility Criteria

To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.

Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.

Extraordinary ability in the field of arts means distinction.  Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered. The beneficiary must be renowned, leading, or well-known in the field of arts.

To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered. The beneficiary must be recognized as outstanding, notable or leading in the motion picture and/or television field.

Advantages of the O-1 visa

The O-1 visa has a number of advantages, as compared to the H-1B. First, there is no annual cap on the number of O-1 visa issued. Second, there is no limit on the number of extensions or the length of the beneficiary’s stay in the U.S. In contrast, after six years in the U.S., H-1B beneficiaries must return to their home country for one year, unless they have an approved Form I-140 (Immigrant Petition for Alien Worker). Third, the focus of the O-1 petition is on the achievements of the beneficiary; the burden on the petitioning employer is less as compared to H-1B. For the O-1, no Labor Condition Application (LCA) is needed. Fourth, the average processing time is 2-3 weeks, as compared to 2-6 months for H-1B. Premium processing may be requested by filing Form I-907 and paying a fee of $1,225; if premium processing is requested, the USCIS will issue a decision on the petition within 15 calendar days. Fifth, the beneficiary can start to work upon approval of the O-1 visa petition, whereas for the first cap-subject H-1B, the petitioner must apply by April 1st, but the beneficiary must wait until October 1st before starting to work.

In addition, as the O-1 visa allows immigrant intent, it can be extended even after filing a Form I-140 (Immigrant Petition for Alien Worker). Also, the O-1 may be a good first step to qualifying under EB-1A (Alien of Extraordinary Ability), as many of the criteria are similar. But, it is easier to qualify under O-1 than EB-1A, as Kazarian does not apply. (link to wegreened discussion of Kazarian here)

Application Process

The O-1 petitioner must file an I-129Petition for Nonimmigrant Worker with the USCIS and pay a $325 filing fee. The petition may not be filed more than one year before the actual need for the alien’s services. To avoid delays, the Form I-129 should be filed at least 45 days before the date of employment. In addition to filing an I-129 and paying the filing fee, the following documentary evidence must be provided:

Consultation

A consultation is a written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the beneficiary’s area of ability.
If the O-1 petition is for an individual with extraordinary achievement in motion picture or television, the consultation must come from an appropriate labor union and a management organization with expertise in the beneficiary’s area of ability.

Exceptions to the Consultation Requirement:

If the petitioner can demonstrate that an appropriate peer group, including a labor organization, does not exist, the decision will be based on the evidence of record. Those in academic and teaching fields have no unions or peer groups and, therefore, must have letters of recommendation from the applicant’s “peer group” in which their referees outline their own standing in the field.

A consultation may be waived for an alien with extraordinary ability in the field of arts if the alien seeks readmission to perform similar services within 2 years of the date of a previous consultation.  Petitioners should submit a waiver request and a copy of the previous consultation with the petition.

Contract between petitioner and beneficiary

A copy of any written contract between the petitioner and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed is needed.

NOTE:  USCIS will accept an oral contract, as evidenced by the summation of the elements of the oral agreement.  Such evidence may include but is not limited to: emails between the contractual parties, a written summation of the terms of the agreement, or any other evidence which demonstrates that an oral agreement was created.

The summary of the terms of the oral agreement must contain:

  • what was offered by the employer
  • what was accepted by the employee

The summary does not have to be signed by both parties to establish the oral agreement.  However, it must document the terms of the employment offered and that the beneficiary has agreed to the offer.

Itineraries

An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities, if applicable. The petitioner must establish that there are events or activities in the beneficiary’s field of extraordinary ability for the validity period requested, e.g. an itinerary for a tour or a series of events.

North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability) and EB1-B (Outstanding Researcher/Professor).

Our Ten Thousand I-140 Approvals Provide Unprecedented Insight into the USCIS Adjudication Trend

With 12,000 EB-1A, EB-1B and EB-2 NIW approvals, we have first hand information on the manner in which the USCIS adjudicate I-140 cases. As the USCIS has constantly changed its adjudication standards for the EB-1A, EB-1B and EB-2 NIW categories, our firm's huge database of successful cases gives you unprecedented insight to USCIS adjudication trends. We carefully analyze the data for all of our cases and apply the results of our analyses toward giving our clients up-to-date advice and adapting our strategies such that we remain on par with the ever-shifting landscape of immigration law in the U.S. With us, you will always have access to important updates, strategies, and information so that you can make the most informed decisions about your case.

We Have Helped Hundreds and Thousands of Clients with Credentials and Backgrounds Similar to Yours

With our exceedingly large number of successful petitions, no matter what credentials you have, no matter your background and field of expertise, no matter your visa status or nationality, chances are we have helped hundreds or even thousands of clients just like you. Our clients are usually impressed with how well we understand their research and work. Our insight and understanding stems from the fact that we have handled many cases with elements similar to yours already, and this helps us devise the best strategies for each individual petition.

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For years, our firm has attracted new clients based solely on word of mouth, recommendations, and the positive collaboration experiences shared with them by their friends and family. We take pride in our reputation and work hard to ensure that we provide a green card application experience that our clients are happy to share with their friends and colleagues. That is how our approvals grew from 600 in 2013 to more than 3,000 in 2017.



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