Individuals who apply and fail to obtain an H-1B temporary visa to work in the United States might consider an O-1 visa instead. The O-1 visa allows recipients to work in the U.S. for an initial period up to three years, with one-year extensions granted thereafter.
What Is an O-1 Visa?
The O-1 nonimmigrant visa is given to individuals who possess "extraordinary ability" in the sciences, arts, education, business or athletics, and have been recognized for their achievements nationally or internationally. In addition, those who've demonstrated achievements in the movie or television industry may also qualify for an O-1 visa.
Unlike the H-1B visa program, the U.S. does not limit the number of O-1 visas it issues each year, making this an attractive alternative. On October 6, 2020, the Donald J. Trump administration narrowed eligibility requirements for H-1B visa applicants and also set wage levels that employers are required to pay them. (See also: The H-1B Visa Issue Explained)
It's important to note that O-1 visa candidates need a U.S. employer, U.S. agent or foreign employer through a U.S. agent to file a petition on their behalf.
How Is 'Extraordinary Ability' Determined?
U.S. Citizenship and Immigration Services (USCIS) doesn't provide details on how it evaluates whether a candidate possesses "extraordinary ability." However, the Code of Federal Regulations states that O-1 visa applicants should demonstrate achievement in at least three of the following:
- 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, as judged by recognized national or international experts in the field
- Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary's work in the field for which classification is sought
- Participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought
- Original scientific, scholarly, or business-related contributions of major significance in the field
- Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
- Evidence of the display of the applicant's work in artistic exhibitions or showcases
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
- A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
- Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc or video sales
Not having sufficient evidence of accomplishments listed here doesn't mean yours is an impossible case, according to immigration attorney Jane Orgel, who has handled many many O-1 cases for people who did not manage to obtain H-1B visas.
"I find that even if applicants do not strictly meet those requirements, they can get approved for the O-1 if their case has merit and is presented in the right way," Orgel said. "I think [USCIS] understands that it's difficult to always fit into those slots and I often use the 'comparable evidence' criterion to explain why the applicant may not have press, for instance, but nevertheless is deserving of the O-1 visa."
Candidates must also be able to provide a written advisory opinion from a peer group (including labor organizations) or a person with expertise in their area of ability.