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

With the right set of skills and professional experience, you might be lucky enough to match the eligibility criteria for more than one type of U.S. visa: specifically, either the H-1B visa for specialty occupation workers, or the O-1 visa for workers of extraordinary talent.

If you can find a U.S. employer to sponsor you, the H-1B visa for specialty occupations and the O-1 visa for workers with extraordinary talent are two excellent types of nonimmigrant visas for foreign-born skilled professionals who want to work in the United States. Although they have different eligibility requirements, some professionals might find themselves eligible for both visas. This article will discuss the advantages and disadvantages of each type so you can determine which is right for you.

Who Can Obtain an H-1B Visa

The H-1B is a popular employer-sponsored visa for skilled professionals or "specialty workers"—defined as workers who have a bachelor's degree (at minimum) in the same field or specialty as the position the employer wants to fill. That means in order to be eligible, you must have a job offer in place from a U.S. employer willing to sponsor you (the employer is required to sign the paperwork and pay the filing fees).

Not Everyone Who Is Eligible for H-1B Can Actually Apply for One

The H-1B 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). Only 65,000 new H-1B visas are available annually, and some of these reserved for applicants from specific countries.

However, if you have more than a bachelor's degree, there is good news: an additional 20,000 H-1B visas are reserved for people who have a U.S. master's degree or higher. If you apply under the "master's cap" you will first get a chance under the "regular cap," and if you are not selected you will get another chance under the master's cap. This significantly increases your chances of selection.

Because this visa is very popular, U.S. Citizenship and Immigration Services (USCIS) holds a preregistration lottery every year to select who may apply under each cap—that is, your employer has to win a spot just to send in an application, which might still be denied.

Another complication with the H-1B application process is that it puts employers under a tight deadline, a time period known as "H-1B cap season." The preregistration lottery is held in March. Selected employer-registrants can go on to file H-1B visa petitions with the U.S. government starting in April. H-1B visas are issued with a start date of October 1. Assuming you want to start working as soon as possible, it's important for the employer to get the application in quickly to account for processing times.

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

The complicated rules and tight deadlines mean that an error in your H-1B application can affect your ability to start working. For the best chance of success, speak to an immigration attorney.

Who Can Obtain an O-1 Visa

Like the H-1B, the O-1 visa is also an employment-based nonimmigrant visa that 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. You do not have to have a degree, and the areas of expertise are broad.

This visa is not "capped," which means no annual limit exists on how many can be approved, and the U.S. 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, as we discuss next.

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

Here are some of the reasons to choose an H-1B over an O-1 visa.

Ability to Apply for Green Card for H-1B Holder and Dependents

The H-1B 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 does not grant permanent residence (a "green card"). The same is true for the O-1 visa. However, one advantage of the H-1B visa is that it is one of the few temporary visas that allow "dual intent," a complicated legal concept. Essentially, a nonimmigrant visa usually requires you to show intent to leave the U.S. when the visa term ends, which means you cannot apply for a green card (because that would demonstrate intent to stay).

What this means for the H-1B: The H-1B is a dual intent visa. This means you do not have to promise your stay will be temporary or maintain a foreign residence abroad, and you can apply for a green card. Additionally, your spouse and children who accompany you can also apply for green cards.

What this means for the O-1: The O-1 is in a category known as "quasi dual intent." This means that you do not have to maintain a foreign residence, but you still have to show intent to depart the U.S. when your visa expires. Technically, you can even apply for a green card and your O-1 visa or extension cannot be denied on that basis. However, this can be a problem if you have any dependents, because they will not be allowed to apply for a green card.

For more information on dual intent visas, read And Nonimmigrant Work Visa as Stepping Stone to a Green Card.

Despite H-1B Cap, You Might Fit Into an Exemption

The yearly cap on H-1B visas will be a major consideration in whether to try for one. However, 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.

Lower Eligibility Threshold for H-1B than O-1

The H-1B visa has one particular advantage: Its threshold ability and education requirements are 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. The additional requirements are placed primarily on the employer. Even though the O-1 does not require any degrees, O-1 visas are for people at the "top" of their fields. Many fields such as STEM will necessitate earning advanced degrees in order to rise high enough to be eligible for O-1.

Easier to Prove H-1B Eligibility

It's simple to demonstrate you have the requisite degree and occupation required for an H-1B (although it can sometimes take a creative lawyer to explain how your degree relates to your field if it's not immediately obvious).

The O-1 visa, on the other hand, requires proving through extensive documentation that you have risen to the "very top of the field." This requires demonstrating either that you have won at least one major international award or have achieved several other specific accomplishments. 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 complicated and 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.) although it is not a requirement.

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

Here are some reasons you might want to choose an O-1 visa over an H-1B.

Less Competition for O-1

Because the H-1B is so popular, selection is a game of chance. The employer can register year after year without getting selected in the lottery, and there is nothing you or your employer can do to change that. In fact, registrations have skyrocketed in recent years, meaning your chances of applying are even smaller than in previous years. The O-1 visa, however, does not require any luck to apply, only skill.

No Filing Deadlines for O-1 Visa

Unlike H-1B applications, which employers must start submitting to the U.S. government early in the year, O-1 applications can be filed for at any time (although the job in the United States must start within one year of the application date). The H-1B has a shorter application window, and the job must start within six months.

Immediate Start Dates Upon O-1 Approval

When an O-1 is approved, it becomes effective as soon as it is issued. By contrast, the H-1B visa does not become effective until October of same year in which it is issued (again, this is because of the annual cap—October is the beginning of a new fiscal year, when USCIS restarts the count for visa caps). Some people who are already working in the United States have options to fill the gap between their date of approval and October, but anyone who does not might have to leave the U.S. if their previous status expires before the H-1B becomes effective.

Ability to Keep Extending O-1 Stay

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., for a maximum of three years. However, as long as the project continues, the O-1 visa can be extended for one year at a time without any upper limit. An H-1B, by comparison, can be renewed for only a total of six years, unless you qualify for special exceptions based on having had another application pending with USCIS for a long time (or for some other possible exception such as having spent part of the six years outside the U.S.).

Stepping Stone From O-1 to Immigrant Visa

Finally, one key advantage of the O-1 is that its basic requirements for scientists, artists, educators, business people, and athletes are almost identical to the requirements for the EB-1 visa—an immigrant visa that 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.