The first step of the U.S. employment-based nonimmigrant visa application process is choosing the category with the best prospects for an individual applicant. While the O-1 and H-1B are both temporary visas, each of these two classifications comes with unique characteristics which must be clearly understood by foreign nationals and prospective U.S. employers. This article discusses the requirements, benefits, and processes for each status while offering helpful tips for choosing the best one based on your eligibility.
The O-1 nonimmigrant visa is for foreign nationals who have extraordinary ability and are well known nationally or globally for their achievements in fields such as science, art, education, athletics, or business. It is also available for those who have made remarkable achievements in the motion picture and television industry.
The visa classification has two subcategories:
- O-1A: For those with exceptional ability in the sciences, education, athletics or business
- O-1B: For those with exceptional ability in the motion picture or television industry
Requirements for O-1 Nonimmigrant Visa
Each of the O-1 subcategories (O-1A and O-1B) has a long list of unique evidentiary criteria that must be met by each applicant. However, one way to sum up the requirements for an O-1 visa is that it is meant for those who can prove that they have risen to the very top of their fields and have substantial documents and/or major international awards to back up these claims.
An O-1 requires qualification far above what is achieved through a bachelor’s degree, though the classification has no official educational requirement. It usually takes higher qualifications plus a considerable number of years of experience to satisfy the listed criteria. For those in the television and motion industry, they must be able to demonstrate that they have exceptional talent.
If you base your qualification on a single international award, it is expected to be in the category of a Nobel Prize or a Grammy. In lieu of an award of this caliber, you must meet at least three of the requirements listed under the O-1A or O-1B evidentiary criteria.
Just like most employment-based visas, you are required to have a job offer from a U.S. employer, or a scheduled performance at an event in the U.S. Your prospective employer/agent will need to file an I-129, Petition for Nonimmigrant Worker in a bid to sponsor your O-1 visa. The petition must be filed with the following evidence:
- A written advisory opinion or consultation from a recognized peer group such as a labor organization or any widely recognized body in your industry or field. If you have a genuine reason preventing you from presenting a consultation from a peer group, the USCIS may waive the consultation and base their decision off of other items on your records.
- Details of the contract between you and the employers
- An itinerary or explanation of the specific activities your job would involve, including the beginning and ending dates of the contract.
O-1 Visa Processing Time
Compared to other employment-based visas, the processing time for an O-1 is relatively short. Depending on the service center processing your application, the I-129 petition usually takes between 2-3 months to process.
After that, if you are outside the U.S., you will be scheduled for an interview a few weeks after the decision on your I-129. You can start preparing your journey to the U.S. the moment your visa is approved, unlike some employment-based classifications which only take effect at a certain period of the year.
The H-1B visa category is another nonimmigrant temporary classification which applies to foreign nationals who wish to live and work temporarily in the U.S. in any of these three fields:
- H-1B Specialty Occupations
- H-1B2 DOD Researchers and Development Project Worker
- H-1B3 for Fashion Models
H-1B Visa Requirements
Both the H-1B and H1B2 require an applicant to have at least a bachelor’s degree or its equivalent in the job specialty from an accredited institution. Some specialties require an unrestricted license to practice and/or a considerable level of experience or training for the said specialty. For the H-1B3, an applicant must be a prominent fashion model with distinguished merit and ability.
H-1B Visa Process
Just like the O-1 category, you cannot self-petition for an H-1B visa. It must be sponsored by a prospective U.S. employer with evidence of a job offer and your qualifications for the position. However, the major difference is that the process requires your prospective employer to get a Labor Condition Application (LCA) from the Department of Labor before a petition can be filed on your behalf. The only exception to this is the H-1B2, where an LCA is not required. For all others, here is the application process:
Step 1: Submission of LCA to DOL
The LCA process is a prerequisite for the H-1B visa application. The U.S. employer initiates the application process by filing an ETA-9035 with the Department of Labor. In the form, your employer will need to prove to the DOL that you (the beneficiary foreign employee) meet the requirements for an H-1B visa.
Essentially, four attestations must be made in the LCA:
- That the employer will pay the beneficiary the prevailing wage
- That the beneficiary’s employment will not negatively impact the current employees
- That the current employees have been notified of the intent to hire the beneficiary
- That no lockout or strike is taking place at the beneficiary’s intended worksite
Step 2: Submission of the I-129 Petition and H-1B Cap
After getting an approved LCA, your prospective employer will then proceed to file an I-129 with the approved LCA. However, it is not as easy as it is for the O-1.
Due to the volume of H-1B visas that are petitioned for each year, the Department of State has instituted an annual cap. To decide which petitions are selected for this cap, there is a lottery in which the petitions are chosen at random. This lottery opens on the first business day in April and closes once the cap is reached or 7 days go by. Employers are not able to file petitions outside of this window.
Every H-1B petition is subject to this cap except for the following scenarios:
- Petitions for H-1B transfers or extensions
- Petitions for the following specialty positions:
- Institutions of higher education
- Nonprofit organizations associated with institutions of higher education
- Government research centers
If the petition is selected or is not subject to the cap, the processing for the I-129 could take the USCIS up to six months or longer depending on the caseload at the service center processing the petition. Premium processing can be used to speed up this processing time, but if you are subject to the cap, then the earliest you can start working is October 1st.
Step 3: Apply for the Nonimmigrant Visa
If the I-129 is approved, the USCIS will forward your case to the U.S. embassy or consulate in your country of residence where you will proceed to apply for an H-1B visa at the U.S. embassy or consulate nearest in your current country of residence.
This process is known as consular processing and will involve the submission of biographic information, credentials, and participation in an interview. You may also need to undergo a biometric screening and a medical examination.
H-1B Processing Time
The processing time for the H-1B visa is dependent on individual applicant, employer, service center, and consulate. On average, however, this may take a minimum of 6 months. This is from the beginning to the end of the process, including the LCA application, which usually takes around 7 working days.
Choosing Between O-1 Visa and H-1B Visa
As you can see from the above explanation, each of the two visa classifications has its own unique benefits, and downsides. Let us compare the two categories based on their advantages and disadvantages.
O-1 Requirements vs H-1B Requirements
Clearly, the O-1 visa has more stringent requirements than H-1B. Only a few people in their fields can meet the evidentiary criteria of the O-1 category, which makes it a less attractive route for many foreign nationals seeking nonimmigrant employment-based status in the U.S. On the other hand, the H-1B only requires a bachelor’s degree as the minimum entry requirement for the position.
Visa Cap and Effective Date for O-1 vs H-B
The visa cap the numeric limit of each visa category per year – meaning once the given number is reached, all unselected applicants will have to wait for the following year. Generally, only 65,000 H-1B visas are made available for each fiscal year with an additional 20,000 meant for only those with a U.S. masters or higher degree.
As we mentioned, the H-1B visa application begins in April of every year, and the available visas are usually exhausted quickly. An approved H-1B visa will become effective in October of that year, meaning even if your petition is granted earlier, you will have to wait till October.
However, for O-1 visas, there is no numeric limit or date that must be reached. U.S. employers can file for several O-1 visas at any time of the year so long the employees are qualified. Your O-1 visa also becomes effective the moment the application and petition are approved.
Period of Stay and Visa Extension for O-1 vs H-1B
The O-1 visa is granted with an initial period of stay of 3 years. You can always renew your status for as long as your contract or employment in the U.S. is still valid. The H-1B also has an initial period of stay of 3 years, but you cannot go beyond a total of six years through extensions unless you have an approved green card petition.
Green Card Process for O-1 vs H1B
One of the highest aspirations of many foreign nonimmigrant visa holders in the U.S. is to become a U.S. green card holder. This factor is usually considered at the outset of choosing a visa category. While neither the H-1B nor O-1 category leads to an automatic green card, one still appears more promising.
Due to requirement similarities between O-1 nonimmigrant and EB-1 immigrant visas, most O-1 holders have a good shot at EB-1 green card after spending a certain number of years in the U.S. The H-1B to green card process may be longer due to the Labor Certification requirements.
Both the O-1 and H-1B categories present a great opportunity to work and live in the U.S. You will need to consider a lot of factors, such as your academic qualification, job experience, accomplishment in your field, and whether you plan to become a permanent resident in the future or not. However, it will be very helpful to consult an experienced immigration attorney and discuss your chances for each of the two before starting the process.