The O-1 Extraordinary Ability Visa: An Attractive Alternative to the H-1B

When employers consider nonimmigrant employment-based visas, the H and L categories typically reside at the top of the list. However, these are not the only options available for foreign nationals seeking to apply their talent in the U.S. and, in certain situations, may not be the best fit. The O-1A visa category presents an attractive alternative for potential employees with extraordinary ability.

Here is why some alternatives may be optimal. 

The H and L visa categories, particularly the H-1B, are infamous among immigration professionals for their challenges. Non-exempt H-1B petitions are only eligible to request H-1B status for a new H-1B beneficiary once per fiscal year since H-1B petitions subject to the numerical cap must participate in the annual registration period. With the number of H-1B lottery registrants growing exponentially each year, it is increasingly difficult to receive a selection notice to permit the petition even to be adjudicated. 

Restricting long-term planning within a business, L-1A and L-1B have limitations of seven and five years, respectively. Similarly, the H-1B visa, with certain exceptions, limits a nonimmigrant’s employment in the U.S. to six years. Limiting the length of employment of a nonimmigrant employee who will later become a permanent hire is difficult to balance against an ever-increasing visa backlog. 

Conversely, while many employees wait in line for the opportunity to pursue a green card, that is not the objective for everyone, particularly individuals who do not seek a long-term future or permanent relocation to the United Sates. It is not the wish of every nonimmigrant to convert to the immigrant pathway as permanent residency or citizenship in the U.S. may not align with an individual’s financial or personal goals. In fact, in recent years, many individuals have surrendered their permanent residency in exchange for global financial benefits, such as a potential reduction in overall tax liabilities. As such, it is important for an employer to be able to provide a flexible option with fewer length of time restrictions. 

In recent years, L-1 petitions, regardless of the specific type, have started to receive increased scrutiny. It now seems routine for many L-1 visa processes to include a Request for Evidence, increasing the length of overall processing time and causing frustration and unpredictability regarding employee start dates. Accordingly, employers have begun to look to other categories for relief.

The H and L visa categories are not always the best match for an employer and potential employee, and an O-1 or other visa type may be a more attractive option. For example, an employee may possess impressive business credentials but lack the requisite tenure with a qualifying organization to be eligible for the L-1A visa or face evidentiary challenges with respect to documenting specialized knowledge in the case of an L-1B visa. In such situations involving individuals of extraordinary ability, the O-1A visa classification may be a better option. 

To provide another example, although the hotly debated H-1B visa category is most commonly used for providing work authorization for specialty occupation workers, it is also utilized by individuals who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability. The latter category consists of individuals who are at the top of their field of endeavor and may also qualify for an O-1B visa. 

O-1A Overview: Science, Art, Education, Business, Athletics, Motion Picture/Television Industry

The O-1 category is reserved for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. 

Those eligible for O-1A classification are individuals with an extraordinary ability in the sciences, education, business, or athletics. Such “extraordinary ability” in the field of science, education, business, or athletics is defined as a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor. 

To demonstrate this level of expertise, the petition must include at least three of the following categories of evidence pertaining to the potential beneficiary:

• Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
• Membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields
• Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary's work in the field for which classification is sought, which must include the title, date, and author of such published material, and any necessary translation
• Participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization for which classification is sought
• Original scientific, scholarly, or business-related contributions of major significance in the field
• Authorship of scholarly articles in the field, in professional journals, or other major media
• Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
• Command of a high salary or other remuneration for services, as evidenced by contracts or other reliable evidence

Advantages of the O-1 Visa Category 

The O-1 visa has three key advantages:

1. Employer-employee relationship flexibility
2. Unlimited extensions, provided the beneficiary continues to qualify
3. Lack of an annual filing or registration period

Employer-employee relationship flexibility

The O-1 visa category boasts employer flexibility as it is not required that the beneficiary be directly employed by the entity for which the beneficiary will work. Instead, the beneficiary may work either for an employer or a U.S. agent. 

Unlimited extensions, provided the beneficiary continues to qualify

One of the top benefits of an O-1 visa is the lack of limits on the number of extensions, allowing the individual to exit and enter the U.S. indefinitely, provided they continue to qualify for the visa category. Accordingly, the O-1 provides significant relief with respect to the potential length of use of the visa category, as this nonimmigrant visa classification offers unlimited one-year extensions of the initial three-year period in contrast to its H and L counterparts that limit the length of stay, subject to few exceptions. The O-1 visa is one of “dual intent,” meaning that the beneficiary may hold status as a nonimmigrant while awaiting an immigrant visa. 

Lack of an annual filing or registration period

Unlike some nonimmigrant visa categories, as the O-1 visa is not restricted by annual numerical caps nor a corresponding lottery process, the filing period is not limited to a specific window during the fiscal year. As such, O-1 petitions may be filed at any time during the course of the fiscal year.

As indicated by the required evidence, O-1 visa petitions are complex in nature and require extensive documentation. It is highly recommended to consult with an immigration attorney prior to beginning the process. 

This article was co-authored by Tieranny Cutler, independent contract attorney.

• RELATED TOPICS
• Immigration
• H1-B Visa Program