H-1B for specialty occupations and O-1 visas for extraordinary ability
Foreign nationals, who are neither U.S. citizens or permanent residents, must hold a legal visa status to work in the United States. The H-1B and O-1 visas are the most common options that grant legal work status to foreign nationals in the U.S. Although both visas share the commonality of providing legal work status, there exist numerous differences in the eligibility requirements and application processfor obtaining each visa or visa status. Additionally, H-1Bs and O-1s differ in their respective advantages and disadvantages.
What do H-1B and O-1 visas have in common?
The O-1 and H-1B are the most widely known employment-based nonimmigrant visas in U.S. immigration. For both visa statuses, you can work for the same employer or agency that petitioned for you for that visa status.
Both visas are generally limited to three years of work authorization, and they are renewable after the initial validity period. However, an H-1B can only be renewed for up to six years, including the first three years, and if a green card is applied for, it can be renewed again and again until the green card is granted. On the other hand, O-1s are renewable without restriction.
The O-1 Specialty Worker Visa is designated for individuals of extraordinary ability, categorized into two groups.
The O-1 Specialty Worker Visa is designated for individuals of extraordinary ability, categorized into two groups. The O-1A is for those who excel in the fields of business, science, engineering, and athletics, while the O-1B is for those who excel in the arts, including artists, actors, and performers. While the O-1A and O-1B visas differ in their eligibility requirements and adjudication criteria, they share the common requirement of demonstrating extraordinary abilities in the respective field.
Advantages of the O-1 visa:
- No Degree Requirement: In theory, even a high school dropout could qualify for an O-1 visa.
- No Quota Limit: Unlike the H-1B, there is no numerical limit to the number of O-1 visas or visa statuses awarded each year. You can apply and start working at any time, and there’s no lottery process, eliminating pressure to be competitive.
- Flexible Criteria: USCIS has flexible criteria for the O-1 to meet the abstract concept of extraordinary ability. For O-1A, you can qualify by meeting at least three of the eight criteria, and for O-1B, you can qualify by meeting at least three of the six flexible criteria.
- No Restrictions on Extensions: While the O-1 is a temporary work visa, it can also be a permanent solution. O-1 visa holders can continue to apply for extensions without restriction.
Disadvantages of the O-1 visa:
- Complex visa petitions: Demonstrating eligibility for an O-1 specialty worker visa through the required documentation from USCIS is a challenging process. A petition for an O-1 visa necessitates substantial documentation, ranging from as few as 100 pages to several hundred pages of evidence.
- No work authorization for spouses: In contrast to the H-1B visa, spouses of O-1 visa holders do not qualify for work authorization in the United States. If they wish to work, they must apply for a separate work visa.
H-1B Visa for Specialty Occupations
The most common non-immigrant worker visa is the H-1B. Each year, thousands of international students and professional immigrants seek H-1B visas, and most U.S. companies are well-acquainted with this visa, featuring relatively straightforward eligibility requirements.
Advantages of the H-1B visa:
- Easy Employer Change: Once granted an H-1B visa, switching to another employer is more straightforward compared to other labor visas.
- Work Authorization for Spouses: An H-4 visa holder, who is the spouse of an H-1B visa holder, may work in the U.S. under limited circumstances. For instance, this is possible if the H-1B holder proceeds with the green card process and is approved for an I-140.
- General Requirements: Qualifying for the H-1B visa is relatively straightforward compared to other employment visas, especially if you hold a bachelor’s or higher degree relevant to the field in which you will be working.
Disadvantages of the H-1B visa:
- Annual Visa Quota Cap and Lottery: The number of available H-1B visas is limited each year, requiring applicants to be selected through a lottery for a chance to apply.
- Prevailing wage requirement: Employers must pay H-1B visa holders a prevailing wage based on the position offered or the location where they will be working. This can be a challenge for some organizations.
- Strict Start Date: Regardless of when the H-1B application is filed, the visa’s start date is fixed in October, marking the beginning of the federal government’s fiscal year.
- Prevailing Wage Requirement: Employers must pay H-1B visa holders a prevailing wage based on the offered position or the location of work, posing a challenge for some organizations.
H-1B VS O-1: Which is Better?
Many international students are concerned about their stay in the U.S. and are exploring opportunities in the U.S. job market to advance their careers. While worker visas like the H-1B are commonly considered, the lottery system often leaves many unsuccessful candidates uncertain about their future. However, if you are qualify for both an H-1B and an O-1 visa, the O-1 visa might be a more favorable option, regardless of your lottery status. Therefore, if you find yourself outside the H-1B lottery, don’t lose hope or assume you have no alternatives. Seeking guidance from an immigration attorney is crucial. If you have any further questions, please contact mail@songlawfirm.com .