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January 14th 2020

H-1B vs O-1 visa: Which should I choose?

The H-1B visa is a good fit for foreign nationals in the early to mid-stages of their careers hoping to expand their experience by working in the U.S. The O-1 visa is generally suited for established professionals. This guide reviews both types.

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The H-1B and O-1 visas are both temporary work visas available to foreign nationals with the right set of skills and experience who want to work in the United States. As a professional, it’s possible that you qualify for more than one temporary work visa, but choosing one that fits your specific situation and qualifications best can increase the chances that your application will meet with success. 

The H-1B visa is a good fit for foreign nationals in the early to mid-stages of their careers who hope to expand their experience by working in the U.S. The O-1 visa, on the other hand, is generally suited for people who have already advanced in their profession. This guide will cover both types of visas in detail, including the eligibility requirements, key benefits, and more. 

What is the H-1B visa?

The H-1B visa is applicable for those who aim to do any of these three jobs in the U.S. temporarily:  

  • Specialty occupations (H-1B)

  • Department of Defense cooperative research and development project (H-1B2)

  • Services as a successful fashion model (H-1B3)

On an H-1B visa, you can stay in the U.S. for an initial period of three years, which can be extended for a maximum stay of six years. Similar to the O-1 visa category, H-1B visas should be sponsored by a U.S.-based employer.

H-1B requirements

The minimum requirement for both the H-1B and H-1B2 visa is a U.S. bachelor’s degree or its equivalent from a foreign institution. The H-1B3, on the other hand, requires that the foreign national is recognized nationally or internationally by the media or industry experts as a successful fashion model without having to work in a specialty occupation or possess a four-year college degree or higher.

H-1B application process

Acquiring an H-1B visa normally requires a lot of participation from the employer. The process can be summarized into three steps.

Step 1: Submit a Labor Condition Application (LCA) to be approved by the Department of Labor (DOL)

This document is only required for H-1B and H-1B3. Your employer will typically take care of this step by filing ETA-9035 with DOL and submitting information that proves your eligibility for an H-1B visa.

In the LCA, it should be indicated that: 

  • The employer will pay you the prevailing wage

  • Your employment will not negatively affect the current employees

  • Current employees are aware of the company’s intent to hire you

  • No strike or lockout is taking place at the company’s intended worksite for you 

Step 2: Submit Form I-129, Petition for Nonimmigrant Worker

The employer will submit Form I-129 along with the LCA at a designated service center of the U.S. Citizenship and Immigration Services (USCIS).

There is a 65,000 petition cap each fiscal year. To select which petitions will be accepted for processing, the lottery starts on the first business day of April and ends in seven days or when the cap has been reached — whichever comes first. Petitions filed beyond this time frame won’t normally be accepted.

All petitions for an H-1B visa category are subject to the cap except the following:

  • Workers of institutions of higher education (college/university)

  • Workers of nonprofit organizations associated with institutions of higher education

  • Workers of government research centers 

  • Petitions for H-1B transfers or extensions

  • Petitions for the following specialty positions

For chosen petitions, USCIS may take six months or longer to process the application. Premium processing is also available for H-1B visas which offers a 15-day processing time.

Step 3: Apply for the visa at a U.S. embassy

If the submitted Form I-129 is approved, USCIS will forward your case to the U.S. embassy or consulate closest to your home country. You will then have to undergo consular processing and an interview. A medical exam and biometric screening may also be required.

On average, the processing time for the H-1B visa may take six months or more, making it important for you to prepare ahead. Consider speaking with an immigration attorney to approve your chances of approval. 

What is the O-1 visa?

For the O-1 visa program, “exceptional” is the operative word that can help you understand the basic qualifications for this visa type. There are two categories for this visa classification:

  • O-1A: For foreign nationals with exceptional ability in the sciences, athletics, business, or education

  • O-1B: For foreign nationals with exceptional ability in the entertainment business, motion pictures or in the television industry 

O-1 visa holders may also bring key personnel or staff with them to the U.S. through the O-2 visa category. Examples of individuals who qualify for an O-2 visa include the training team of a world-class athlete or the production team of a renowned filmmaker. Both O-1 and O-2 visa holders may also bring their family members with the O-3 visa. 

The O-1 visa is normally valid for up to three years, but if the holder is traveling to the U.S. for a specific event, activity, or production, this period could be less. If the visa holder needs more time in the U.S. due to the continuation of the same production or activity, extensions can be granted in one-year increments with no limitations.

How to qualify for an O-1 visa

According to USCIS, interested applicants of the O-1B or O1B visa should meet specific criteria to prove their extraordinary ability in their field. 

1. O-1A requirements

The O-1 visa is meant for foreign nationals who have risen to the top of their fields and can show substantial proof such as documents or major international awards to support these claims. 

To qualify, you must have received an award that’s internationally recognized such as a Nobel Prize or Pulitzer Prize. Otherwise, you should have at least three of the following: 

  • Nationally or internationally recognized awards for excellence in the field

  • Membership in associations in which membership requires outstanding achievements, as judged by recognized national or international experts in the field

  • Published material in major media about the beneficiary and his/her work in the field

  • Original scientific, scholarly or business-related contributions of major significance

  • Authorship of scholarly articles in professional journals

  • High salary proved by contracts or other reliable evidence

  • Participation on a panel as a judge of others’ work in the field

  • Employment in a critical or essential capacity for organizations that have a distinguished reputation

2. O-1B evidentiary criteria

An O-1B applicant must have received or been nominated for a significant national or international award in the field, such as an Academy Award, Emmy or a Grammy Award. Otherwise, he/she must have evidence of at least three of the following qualifications:

  • Has performed or will perform as a lead or a starring role in productions that have a distinguished reputation

  • Has achieved national or international recognition for achievements, as shown in published reviews

  • Has performed or will perform as a lead, starring or critical role for organizations and establishments that have a distinguished reputation

  • Has a record of major commercial or critically acclaimed successes, as shown by indicators such as title, ratings, etc.

  • Has received significant recognition for achievements from recognized institutions testifying the beneficiary’s authority in the field

  • Has a high salary evidenced by contracts or other reliable evidence 

Apart from those petitioning under the television industry category, the petitioner may also submit evidence comparable to the ones mentioned above if he/she does not have the exact credentials.

Prospective O-1 visa holders must file Form I-129 within a year before the start of employment or at least 45 days before the start. The petition form must be submitted with the following files known as documentary evidence: 

Consultation. This can be in the form of a written advisory opinion from a peer group, such as a labor organization, or from an expert in your field that serves as a confirmation of your good standing. If the petitioner is from the motion picture or television field, the consultation must come from an appropriate labor union and a management organization in the industry.

Contract. There must be a copy of the contract that established the employment of the beneficiary. Examples of evidence can be emails between the employer and the beneficiary, a written summation of the terms of the agreement, or any other evidence that proves there was an oral agreement. 

If the document is a summary of the terms of the oral agreement, it must contain: (1) what was offered by the employer and (2) what was accepted by the employee.

Itineraries. USCIS also requires the following:

  • An explanation of the nature of the events that the visa holder will participate in

  • The start and end dates of the events

  • A copy of the itinerary of the events

You'll also have to prove that the activities are within your field of extraordinary ability and that the events are within the period you request the visa.

H-1B vs. O-1

We can break down the differences between the H-1B and O-1 visas into five factors.

1. Duration of application

H-1B applications start in April, but even if your petition is approved, you'll normally have to wait until October for the visa to be effective. This delay makes the processing time of an H-1B visa generally longer compared to an O-1 visa.

On the other hand, you can apply for an O-1 visa at any time of the year as long as the gap between the application date and the employment date is less than one year. O-1 visas are usually automatically effective upon application approval. 

2. Duration of validity 

The only limitation on the length validity for an O-1 visa is how long the beneficiary’s project is. If a Nobel Prize-winning foreign scientist needs to conduct a four-year research project in the U.S., he/she can typically extend the initial three-year admission for another year.

An H-1B visa has an initial maximum validity of three years which can only be extended up to six years. If you'd still like to work in the U.S. after six years, you'll have to return to your home country for at least a year and apply again for an H-1B visa.

3. Volume of applicants

The U.S. government issued almost 180,000 H-1B visas in 2018, while only about 17,000 O-1 were issued over the same period. Generally, satisfying the requirements is enough to obtain an O-1 visa, while applicants for H-1B are first selected during a lottery in order for their applications to be processed.

4. Relationship with the Green Card

Neither an H-1B nor an O-1 visa guarantee a Green Card upon application. But because of similarities between the O-1 nonimmigrant visa and the EB-1 immigrant visa, O-1 holders usually have a better shot becoming a Green Card than H-1B holders.

5. The difficulty of satisfying the requirements

The minimum requirement for H-1B is a college degree or its equivalent. This is where some might say that H-1B visas have an edge over O-1. Obtaining a degree in engineering is decidedly easier than obtaining, say, a Nobel Prize in physics.  

Fresh graduates can readily apply for an H-1B visa while only seasoned professionals with years of experience in their respective fields can qualify for an O-1 program.

The takeaway

The H-1B and O-1 visas are both employment-based nonimmigrant programs, but they have very different properties. Neither visa type is automatically better than the other — it all boils down to which one best fits your situation and qualifications best.

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