Should I apply for an O-1 Visa or an H-1B Visa? What are the advantages of an O-1 visa? Is an O-1 visa better than an H-1B visa? Do I Qualify for an O-1 Visa?

An O-1 visas are for people with extraordinary ability in a number of fields (e.g. television, science, business, etc.) To learn more about O-1 visas, please click here.  The bar for an O-1 visa is a high one and the applicant must demonstrate that he/she has risen to a significant level in their profession.  An H-1B visa is a visa that is granted for specialty occupations for jobs that normally require at least a bachelor’s degree.

There are advantages and disadvantages to both visas.  Some of the advantages of the O-1 Visa are as follows:

• The O-1 visa does not have an annual cap so there is no restriction on the number of visas issued. The H-1B is limited to a certain number issued each year and there has often been far more applicants than available visas. As such, the Government has held a lottery over the last several years and applications that were not selected in the lottery were returned.
• The O-1 visa is renewable indefinitely where the H-1B has a set term of generally 6 years.
• The O-1 visa does not have a minimum salary requirement (For an H-1B visa, the employer must pay the at least the prevailing wage).
• The terms of employment can be much more flexible than H-1B – small changes in the work performed or employment location can impact the H-1B petition and require the employer to file an amended petition, whereas this is not always the case for an O-1 petition.
• The H-1B visa has a number of compliance requirements that do not exist with O-1 visas.
• The O-1 visa does not have a minimum education requirement, such as a college degree. That being said, the bar for O-1 visas is quite high.
• The filing fees for the O-1 visa are less than H-1B visa fees.
• H-1B visas have come under significant scrutiny and have increasingly high RFE and denial rates.
• You can apply for an O-1 visa at any time during the year whereas most H-1B petitions have a strict application period starting in April.

Notwithstanding the advantages, the “extraordinary ability” bar is a high one.   Often characterized as the “genius” visa, the O-1 visa may appear to some to be out of their league. While it is true that many famous people would qualify for an O-1 visa, many other less known people can also qualify.   You can qualify for an O-1 by meeting 3 of the criteria that the Government uses to measure extraordinary ability. If you are a creative, ambitious, an accomplished person who has been active in many artistic, business or science or other pursuits and activities, you may be eligible for an O-1 visa.

Like many areas of immigration law, the O-1 visa process is a document-intensive process. Perhaps most importantly, the O-1 visa rewards demonstrated actions and proof of those actions.