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

Getting an H-1B visa or an O-1 visa each presents unique challenges and offers unique benefits. Which is right for you?

With the right set of skills and 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. 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 (“green card”), but is a “nonimmigrant” (temporary) visa that allows you to stay in the U.S. and work in the specialty occupation for a limited period of time.

It is a “capped” visa, which means a limited number are available every year. Specifically, 65,000 H-1B visas are available annually (with some reserved for applicants from specific countries), plus an additional 20,000 for those with a U.S. master’s or higher degree.

Every year, employers must file their H-1B visa petitions with the U.S. government starting in April, in order for the employee to receive a visa that will be effective the October of the same year. The available visas are often exhausted pretty quickly. Most recently, for people subject to the cap, the government has been conducting “lottery” selections, because it receives more applications than exist available visas.

The employer’s ability to get the paperwork filed on time and “win” the selection lottery is only the first step. After that, the government looks at the job and the employee’s qualifications to see if the person and position offered qualify. To learn about the detailed requirements of this visa, please see Nolo’s article, “H-1B Visa to the U.S.: Who Qualifies?”.

Who Can Obtain an O-1 Visa

The O-1 visa is also an employment-based, nonimmigrant visa, which does not give you 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 those who have extraordinary ability in science, art, education, business, or athletics, and those who have extraordinary achievement in television production or motion pictures.

This visa is not “capped,” which means that 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, please read Nolo’s article, “O-1 Visa to the U.S.: Who Qualifies?”.

The existence 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 the H-1B Visa as Compared to the O-1

First, realize that although the 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 of positions are. Some prospective H-1B employees may 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 over the O-1: The threshold ability and education requirement of the H-1B 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. However, at the most essential level, you need to have at least a bachelor’s level degree in the same specialty as the position requires.

An O-1, on the other hand, demands you to show that you have risen to the “very top of the field,” which you must prove through extensive documents, including one major international award, or several other very 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, those 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 in April, the O-1 visa can be applied for at any time of the year, as long as the job in the U.S. will start within one year from application. The H-1B has a shorter window, and the job must start within six months.

When the O-1 is approved, it becomes effective when issued. 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 U.S. 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 your 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 certain special exceptions based on having had another application pending for a long time.

Finally, one of the key advantages of the O-1 is that it is 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 may 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 Nolo’s article on the subject, “EB-1 Visa for Priority Workers: Who Qualifies?”.

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

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