O-1 vs. H-1B: Which Visa is Best for Me?

If you are a highly skilled foreign national, you may have wondered whether you should pursue an O-1 or H-1B visa to work in the U.S. The two visas have very different requirements, benefits and limitations, and evaluating these visas requires understanding your individual needs. In some cases, it may even make sense to pursue both visas.

What is an H-1B?

An H-1B is a temporary work-authorized visa for foreign nationals who hold at least a bachelor’s degree (or its equivalent) in a specialized field and seek to work in a professional occupation for a specific employer in the U.S. The H-1B must be filed by the specific employer, who demonstrates that the position in which the employee will work requires their specific degree. The employer also agrees to pay them a minimum prevailing wage, along with attesting to various other labor protections. H-1Bs are usually initially granted for 3 years and max-out after 6-years, except that it may be extended further if the employee is being sponsored for permanent residency (i.e., a green card) by the employer. Congress sets a numerical cap on new H-1Bs each year, currently set at 65,000 visas for individuals with bachelor’s degrees and an additional 20,000 visas for those with master’s degrees (or higher) from U.S. universities.

What is an O-1?

An O-1 is also a temporary work-authorized visa for foreign nationals who can demonstrate that they have extraordinary ability in the arts, sciences, education, business or athletics and plan to come to the U.S. to work in their area of extraordinary ability. The O-1 has very specific requirements, which vary by profession and industry, but must generally demonstrate that they are among a small percentage of individuals who have risen to the top of their respective field. The O-1 must be filed by a specific employer or by an agent acting on behalf of multiple U.S. entities or on behalf of a foreign employer. O-1s are usually initially granted for 3 years, but do not max-out at any time. O-1s can be extended in one-year increments, except in cases where the individual is changing positions or employers or consular processing their visa, in which case a 3-year extension may be sought. There is no cap on how many new O-1 visas can be issued each year.

Benefits of the H-1B

Once an individual is counted in the annual cap, it is typically much easier to meet the requirements of an H-1B visa. You must present evidence of having a bachelor’s degree (or its equivalent) that is necessary for and directly related to the position in which you’ll work. Unlike the O-1, you do not have to establish that you are more qualified than any other person in your field. An H-1B is also a dual intent visa, meaning that your application for a green card will not impact your ability to maintain or extend the H-1B or affect your ability to travel abroad while waiting on the green card. There are also additional benefits to this visa:

• The employer has a specific wage threshold to pay you, along with extra labor protections.
• It is easier to transfer H-1B to a new employer than an O-1. In many instances, you can begin working for the new employer as soon as the H-1B transfer is filed with USCIS.
• Your spouse may obtain work authorization once you have an I-140 approved.
• You can seek unlimited H-1B extensions if your employer is sponsoring you for a green card.

Limitations of the H-1B

As explained, H-1B visas are subject to a numerical cap every year and historically the demand for the visa has exceeded the available supply. Every March, USCIS holds a lottery to determine which individuals can apply for the visa in a random computer-generated lottery based on luck. The only way to improve one’s odds is to earn a graduate degree in the U.S. In 2020, USCIS received 274,237 H-1B registrations for the total available 85,000 H-1B visas. In 2021, the number rose to 308,613, making the odds of getting one very low.

The H-1B is also incredibly regulated and restrictive, and material changes to the employer, location, position, wage, and hours worked and such require filing another H-1B petition with USCIS to inform them of the change. Changes that require filing another H-1B petition include: changes in the job location outside of the same area of employment; substantial change to the nature of the position; reduction in salary or change in hours worked; change to the employer or payroll entity.

Finally, the H-1B maxes out after 6 years and can only be extended beyond the 6^th year an employer is sponsoring you for a green card. You can seek 1-year extensions beyond the max-out date if an employer filed a labor certification (PERM) for you at least 1 year before your max-out date. You can seek 3-year extensions beyond the max-out date if your I-140 has been approved and your priority date is not yet current under final action.

Benefits of the O-1

The main benefit of the O-1 is that it is not subject to an annual cap or random lottery. Your ability to get the O-1 visa is not based on luck but based on your achievements and extraordinary ability. Meaning, assuming you meet the criteria for an O-1, you can apply for it any time. Other additional benefits include:

• There is no degree requirement for the O-1, which means you may qualify even if you have no higher education.
• The nature of the position in which you will work does not necessarily need to be “specialized” or “professional,” so long as you are coming to work in the field of your extraordinary ability.
• O-1 approval makes it easier to qualify for an EB-1A green card, which avoids the labor-intensive PERM recruitment process, and is typically not as oversubscribed as the EB-2 and EB-3 categories (especially for China and India).
• Your employment is not necessarily limited to only one employer and may accommodate scenarios where you perform services for a variety of entities in the U.S. through an agent.

Limitations of the O-1

Despite its many advantages, the O-1 does nevertheless have some disadvantages as compared to the H-1B:

• There is no work authorization for your spouse. The O-3 visa, which is the dependent visa, does not provide the option to obtain an EAD at any time.
• It can be harder for you to transfer to a new employer. Not only do you again have to prepare the extensive documentation related to your extraordinary ability, but you have to wait for the O-1 to be approved before joining the new employer.
• O-1 extensions are only granted in 1-year increments, unless you consular process or change employers or positions, in which case you may obtain another 3 years.
• The O-1 has a stricter non-immigrant intent requirement, and while dual intent is permitted to a certain extent, travel abroad on an O-1 visa is not possible after an I-485 adjustment of status application has been filed. In this case, you would need to wait until you obtain Advance Parole.

Conclusion 

Even though both the H-1B and O-1 offer different benefits and limitations, in some instances it makes sense to pursue both visa options. For example, you may file an O-1 petition and while it is pending, register for the H-1B lottery as a back-up.

Determining which visa option is best for you can be a hard decision, which is why our firm is here to help. Our experienced employment-based immigration attorneys can answer questions you may have and provide advice on the best visa for you. Please contact the attorneys of Minsky, McCormick & Hallagan to schedule a consultation.