A:

Individuals who are eligible for H-1B temporary worker visas and failed to secure one could receive an O-1 visa. It all depends on whether they meet the more stringent requirements and are able to argue their case well.

The O-1 nonimmigrant visa is for individuals with "extraordinary ability or achievement" looking to work in the U.S. temporarily. The O-1A is for people with an extraordinary ability in the sciences, education, business, or athletics, and the O1B is for those with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.

Unlike the H-1B program, there is no limit on the number of O-1 visas issued every year, making it very attractive to those who were not able to obtain an H-1B because of the quota. London-based immigration attorney Orlando Ortega told The Atlantic that the "increase in the past decade in O-1 visas is likely a result of tech workers who didn’t get lucky in the annual H-1B lottery." The Trump administration has also said it plans to curb the use of the H-1B visa program, putting the spotlight on alternatives. It's important to note that candidates need a U.S.-based agent or employer to petition for an O-1 visa on their behalf. (See also: The H-1B Visa Issue Explained)

Are you 'Extraordinary'?

U.S. Citizenship and Immigration Services doesn't provide details on how it evaluates whether a candidate possesses "extraordinary ability," but it does provide a list of ways applicants can provide evidence of it.

According to the USCIS website, those seeking an O-1A visa should be able to show they received a major, internationally-recognized award or evidence of 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
  • 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
  • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
  • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

If you think you have a major, internationally-recognized award and don't need to meet other requirements, there's a good chance it doesn't make the cut since the USCIS uses the Nobel Prize (no less) as an example of what qualifies.

But not having sufficient evidence of accomplishments listed here doesn't mean yours is an impossible case. Immigration attorney Jane Orgel, who has handled many many O-1 cases for people who did not manage to obtain H-1B visas, told Investopedia, "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. I think the Service 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.

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