H-1B Visas and the H-1B Quota

H-1B petitions are for skilled workers who want to work in the United States for up to six years. To file an H-1B, a worker must have either a bachelor’s degree or equivalent professional experience. A worker also must be employed in a specialty occupation—one that requires specialized knowledge—and must be paid the minimum prevailing wage in the field. You can find more details about the requirements for H-1B petitions here.

However, successfully filing an H-1B petition can be difficult because of the annual quotas, or “caps,” imposed by the government on H-1B visas. Currently, no more than 65,000 H-1Bs can be issued per fiscal year. An extra 20,000 visas are allotted for applicants with graduate degrees from U.S. institutions. These caps are typically reached very quickly; in the past few years, the main quota has been reached before the fiscal year has even begun.

Some petitioners are exempt from the H-1B quota—most notably, if the employer is an institution of higher education, a related or affiliated nonprofit entity, or a nonprofit or governmental research organization. For the most part, though, the H-1B quota severely limits the chance of successfully filing an H-1B petition.

O-1: An Alternative to H-1B

For many people, an O-1 visa is a good alternative to an H-1B. An O-1 visa requires extraordinary ability in the sciences, the arts (including film or TV), education, business, or athletics. The alien must also be working in his or her area of extraordinary ability.

One of our clients, Dr. Chen,* was a nanoscience researcher who wanted to come to the United States to work for a private laboratory. She had tried to apply for an H-1B visa, but the quota prevented her petition from being approved.

Dr. Chen contacted Zhang & Associates to find out about her other options. Attorney Jerry Zhang (info@hooyou.com) reviewed her resume and suggested she apply for an O-1 visa.

O-1 applicants need to prove their extraordinary ability through their past accomplishments and letters of recommendation from experts in their field. In the sciences, education, business, or athletics, applicants must prove they are at the top of their fields with their professional accomplishments, such as publications, smaller awards, or experience judging the work of others in the field. Applicants in the arts, film, or TV must prove they have acquired “distinction”—again, through their professional accomplishments. You can read more about qualifying as an alien of extraordinary ability here.

Dr. Chen had a significant number of research achievements. She also had about 25 journal publications and a few competitive awards. Zhang & Associates helped Dr. Chen prepare strong letters of recommendation to prove that she had extraordinary ability in her field. Her case was approved, and she is currently working in the United States.

Advantages of O-1 Petitions

• O-1 applicants are not subject to any cap or quota. Each case is considered on its individual merits; the total number of O-1 applicants that year does not affect one’s chance of approval.

Dr. Chen had already tried to apply for an H-1B, but her application was not approved because of the quota. An O-1 visa was a much better option for her because she had strong qualifications to use in her petition.

• There is no maximum period of time a single person can hold an O-1 visa. It is theoretically possible to extend an O-1 visa indefinitely—as long as the employer needs the alien to perform his or her duties. Furthermore, aliens who have already held an H-1B for the maximum six years can apply for an O-1 visa if they wish to prolong their stay in the United States.

• O-1 visas apply to more work areas than H-1B visas. H-1B visas are only for skilled professionals and do not apply to entertainers or athletes.

For instance, another Zhang & Associates client, Mr. Lee,* successfully applied for an O-1 visa to work as a martial arts coach. Because Mr. Lee is an athlete, he could not have applied for an H-1B at all. An O-1 visa was a perfect option for him.

• There are no education (or experience) requirements for O-1 petitions. The alien must be an expert, but there are no specific requirements as to how that alien has become an expert.

Advantages of H-1B Petitions

• H-1B applicants do not have to prove their extraordinary ability. H-1B applicants need only specialized knowledge, and a bachelor’s degree or equivalent professional experience.

• For people who want to work at institutions or organizations that are exempt from H-1B quotas, obtaining an H-1B visa might be easier. The requirements are lower than for an O-1, and they are not vying for a small number of highly coveted spots like other H-1B applicants.

For example, if Dr. Chen had had an offer from a university rather than a private institution, an H-1B might have been a better choice for her, as she would not have been subject to the quota and would not have had to prove her extraordinary ability.

• After the initial three years, H-1B visas can be extended for another three-year increment. O-1 visas, on the other hand, start with a three-year period and then have to be extended in one-year increments. For people who know they want to work in the United States for five or six years, maintaining H-1B status may require less work.

Consulting an Immigration Attorney

There are many individual factors that determine which choice—H-1B or O-1—is better for you. Zhang & Associates advises that you seek the counsel of an experienced immigration attorney to help you make this decision.

If you are considering applying for an H-1B or O-1 visa, you can take advantage of our free consultation service. Email Attorney Jerry Zhang (info@hooyou.com) with your questions, and he will get back to you quickly—typically within 24 hours.

* To protect our clients’ privacy, all of their identifying information has been changed.