Qualify for Either an H-1B or O-1 Visa? How to Choose

With the right set of skills and experience, a foreign-born person might match the eligibility criteria for more than one type of U.S. nonimmigrant work visa: specifically, either the H-1B visa for specialty occupation workers, or the O-1 visa for workers of extraordinary talent. This article will discuss the advantages and disadvantages of each.

Who Can Obtain an H-1B Visa

The H-1B visa is used every year by many U.S. employers to get specialty workers—those who have at least a bachelor's-level degree in the same specialty that the employer is hiring for. The H-1B does not give you permanent residence (a "green card"), but is a "nonimmigrant" (temporary) visa that allows you to stay in the United States and work in the specialty occupation for a limited period of time.

It is a "capped" visa, which means a limited number of new visas are available every year (with exceptions and exemptions, such as for people who plan to work for institutions of higher education or related nonprofits). Specifically, 65,000 new H-1B visas are available annually, with some of these reserved for applicants from specific countries, plus an additional 20,000 for people with a U.S. master's or higher degree.

Every year, to deal with the fact that available visas are often exhausted pretty quickly, employers must meet tight filing deadlines set by U.S. Citizenship and Immigration Services (USCIS). This agency typically holds enter a preregistration lottery in March. Only selected registrants go on to file H-1B visa petitions with the U.S. government, starting in April. That's the only way for a cap-subject employee to receive a visa that will be effective the October of the same year.

The employer's ability to "win" the registration lottery and get the paperwork filed on time are only the first steps. After that, the government looks at the job and the employee's qualifications to see whether the person and position offered qualify. To learn more about the procedural requirements of this visa, please see Steps Employers Must Take to Hire an H-1B Worker: Overview.

Who Can Obtain an O-1 Visa

The O-1 visa is also an employment-based nonimmigrant visa, which does not give permanent residence (a "green card"). The O-1 visa is specifically meant for talented people, allowing them to come to the U.S. to work on a particular project or event. It is available to people who have extraordinary ability in science, art, education, business, or athletics, as well as those who have extraordinary achievement in television production or motion pictures.

This visa is not "capped," which means no annual limit exists on how many can be approved, and the employer can petition for it at any time during the year, as long as it is not more than one year in advance of the job start date. To learn about the detailed requirements for this visa, read O-1 Visa to the U.S.: Who Qualifies?.

The existence (or not) of a cap is only one of the major differences between the O-1 and H-1B, many other differences exists, which we discuss next.

Advantages of H-1B Visa as Compared to O-1

Although annual limits on visas will be a major consideration in whether to opt for an H-1B, not every type of job that qualifies someone for an H-1B is subject to this cap; though the majority are. Some prospective H-1B employees might be exempt from the cap, including those being hired by certain organizations such as institutions of higher education and their affiliated nonprofits, nonprofit organizations engaged in research, as well as governmental research agencies.

The H-1B visa has one particular advantage: Its threshold ability and education requirement is much lower than for the O-1. The H-1B requires a bachelor's level degree (or its equivalent) in the same specialty that the employer is hiring for. Additional requirements are placed primarily on the employer.

An O-1, on the other hand, demands showing that you have risen to the "very top of the field," which you must prove through extensive documents, indicating one major international award or several other unique achievements. The international award would be something like a Nobel Prize or a Grammy. If you don't have a major award, you must have at least three other significant achievements from a detailed list. Consequently, people who qualify for the O-1 often have a degree or education well above the bachelor's level (for example, researchers who have a Ph.D.).

But if you happen to have a major international award or an abundance of other achievements and your prospective employer or attorney says you are likely to qualify for either an H-1B or O-1, then consider the advantages of the O-1, below.

Advantages of the O-1 Visa as Compared to the H-1B

Unlike the H-1B, for which employers start applying early in the year, the O-1 visa can be applied for at any time, as long as the job in the U.S. will start within one year from application. The H-1B has a shorter application window, and the job must start within six months.

When an O-1 is approved, it becomes effective upon issuance. The H-1B visa does not become effective until October of the same year it was issued (again, because of the annual cap—October is the beginning of a new fiscal year, and a new visa allotment). Some people who are already working in the United States have options to fill the gap between their date of approval and October, but others do not, and might have to leave the U.S. if their previous status expires before the H-1B becomes effective.

Another advantage of the O-1 is that it is granted based on how long the project or job will last in the U.S., and is not initially granted for more than a three-year stay. However, as long as the project continues, the O-1 visa can be extended for one year at a time without any maximum limit. An H-1B, by comparison, will ordinarily reach its maximum renewals after six years, unless you qualify for special exceptions based on having had another application pending with USCIS for a long time.

Finally, one key advantage of the O-1 is that it's nearly identical in its core requirements for scientists, artists, educators, business people, and athletes to the EB-1 immigrant visa, which does lead to permanent residence (a "green card"). For this reason, an O-1 filing might give you an early opportunity to start compiling the documents and noting the achievements that you can later revisit for an EB-1 green card application. However, an O-1 approval does not guarantee an EB-1 approval.

To learn more about the EB-1 requirements, see EB-1 Visa for Priority Workers: Who Qualifies?.

Getting Legal Help

On balance, the O-1 and H-1B each have unique advantages that might or might not apply to every prospective applicant. To know for certain which is best suited for your situation, consider consulting with an experienced immigration attorney.