Episode 95: Why employers should opt for O-1 visas

Episode 95: Why employers should opt for O-1 visas  

This episode of the BAL Immigration Report is brought to you by BAL, the corporate immigration law firm that powers human achievement through immigration expertise, people-centered client services and innovative technology. Learn more at BAL.com. 

In this week’s episode, BAL’s Gabriel Castro discusses O-1 visas and why more employers are considering them as an alternative to the H-1B lottery. Plus, the latest immigration news. 

From Dallas, Texas, I’m Rebecca Sanabria. 

Adele. Rihanna. Hugh Jackman. Lionel Messi.  

What do they have in common besides being multi-award-winning entertainers and athletes? 

They all hold O-1 visas, also known as the “celebrity visa” or “genius visa,” allowing them to live and work in the United States. In 2023, more than 10,000 O-1 visa petitions were filed, demonstrating a steady increase in applications year over year. 

But how difficult is it for an employer to obtain an O-1 visa on behalf of a foreign national employee? 

BAL’s Gabriel Castro, a senior associate and head of the Los Angeles office, discusses the types of O-1 visas, their eligibility requirements and how BAL helped a groundbreaking biotech client secure an O-1 visa in record time for one of its top researchers. 

Castro: The O-1 visa is maybe my favorite case type that we see. It is reserved for those with extraordinary ability in their fields. Typically, you might see this in arts and entertainment and sometimes even athletics, but also you can see it in science and business.  

In those fields oftentimes you’ll see it as an alternative to the H-1B process, especially when you’re having difficulty getting your employees selected in the lottery. If they do rise to this level of extraordinary, then the O-1 is a viable option for them for employment authorization in the United States. 

There are two types of the O-1 visa: the O-1A and the O-1B. The O-1A is reserved for those in sciences, business and even athletics. The O-1B is reserved for those fields in the arts and the arts can be pretty wide-ranging — of course, you think of traditional artists or writers or filmmakers, but this could also apply to graphic designers. 

Marketing professionals sometimes can be included in the O-1B as well and other areas where you might blend the field between business and arts. We typically will strategize a case because the arts actually has this lower standard than the O-1A. If it can fit one of the two, we will typically choose the arts. 

The most common O-1 that we see here at BAL is the O-1A in the sciences. We represent a lot of researchers or big technology companies that have research divisions with well-cited academic types or people with academic-type backgrounds. 

These are those that have been published across categories. They have been cited by peers in their field that they do peer review for scholarly articles that are appearing in academic journals. These are the typical cases for the O-1A. I think anyone who is in the technology sector and the science sector, if you are working a research-based job this is a really good idea to look into as a visa option for you — if you’re not being selected in that lottery or if you’re coming from abroad and you’re looking for your first job in the United States. 

Publishing would be my number one piece of advice I’d give to anyone looking to bolster their case for the O-1. Just get your work out there. You can’t control who cites you but if it’s good you know more citations are going to come your way. Do peer reviews. You know this is very very important for the O-1. You don’t have to do it three dozen times — a handful of times is really helpful, but you do want to have that on there because judging the work of others is a specific criteria under the O-1A visa. I actually keep the O-1 criteria by my desk at all times.  

Sanabria: Castro discussed what employers can expect when applying for an O-1 visa, the impact of the Biden administration’s guidance on filing extraordinary petitions and how that guidance helped BAL secure an O-1 visa for a client’s top researcher in record time.   

Castro: From the employer perspective, for the O-1A one you’re going to have to be patient. It is a very complex application type. It’s not something that can be typically turned around in a couple of weeks. It’s something that typically will take months on the employer side to develop that case and submit it to USCIS.  

I think it’s important to see this from the outset: The earlier you get an immigration attorney’s consultation on a particular employee, the better, because you want to see that full assessment of whether this individual is going to be eligible for the O-1. It’s actually a very useful visa because you’re not subject to that lottery. You can hire that individual any time of year. As long as the case gets approved, they can come into the United States. They don’t have to already have been here, or if they’re expiring on their STEM OPT, this is a very useful option for an employer.  

A few years ago, the Biden administration released guidance on extraordinary petitions and the national interest waiver. This very much helped clarify parts of the process and provided practitioners with the clear guidance we were looking for in certain areas, particularly when it came to STEM fields. 

This is part of the Biden administration’s push to bring in STEM — to increase the STEM workforce in the United States and bring in some of the best in the world. By the very definition, these individuals are extraordinary. It’s making the process easier for practitioners to put individuals through and to have a clearer understanding of who may or may not qualify under this visa type and really helps everyone involved. 

You’ve seen this directly in the numbers. We’ve seen a 29% increase in O-1 filings over the last three years without a substantial difference in the approval rate in cases. Now, the O-1 approval rate is actually quite high. I was surprised to see that when I was looking at those numbers because they are complex cases, but I think part of that is the clarity that has been provided to the practitioners so that we’re filing better cases and knowing how to get those cases across the finish line. I think that’s really important and I think it’s been a great development in the U.S. immigration sphere. 

A great example of the O-1 and its power is a case that we had here at BAL just last year. This case was for a client of ours that’s an American biotech company that engineers cellular organisms to enable medical breakthroughs, life-saving vaccines and sustainable food production worldwide.  

We saw that one of their employees, one of their brightest employees, was facing an expiring work authorization in her future and her future work outcomes were all at risk. So, it took all of BAL’s talent working together across the globe to convince USCIS that she was a mind worth having. 

This individual with their work authorization expiring in the United States, they were not selected in the H-1B lottery. We had to act fast to file that O-1. Our team in our Boston office worked like crazy to make sure that this happened. This individual — like we said, one of the brightest and most promising researchers for this client — they had 11 publications, 428 citations. Truly someone who was deserving of the O-1.  

That didn’t mean that we didn’t see an RFE (Request for Evidence) from USCIS. We had to respond to that as well.  

Within three months, we went from an expiring work authorization to having the individual here in the United States on the O-1 visa. This is truly, truly part of BAL’s promise of powering human achievement in such a powerful way when you’re talking about a company that creates life-saving vaccines and works in other areas that are saving human lives across the world. Every bit of their talent is important for that goal, and here at BAL we were very proud to contribute to that success. 

We’ve already seen a steady increase in the filings of O-1A applications after this guidance came down from U.S. immigration. And I think it’s only going to continue. I think this is a pattern you will see if they just speak more clearly to the practitioners and the dealer, provide that clarity that we need and to understand the process more clearly. I think that’s just going to continue seeing benefits everywhere in U.S. immigration. 

You’re going to see increased filings when we know what can and cannot work. The more certainty we’re able to provide our clients, the better and more applications we’re going to be able to file with U.S. immigration. I don’t think anyone saw this guidance and said, “OK, well, here’s all the things that aren’t going to work now.” 

If anything, it just provided that clarity. And anyone who goes through the U.S. immigration process knows how frustrating and complex it can be, but also expensive. So when employers are having to make these decisions for their employees, they’re concerned over the risk of the money that will have to be spent. 

If they hear that we’re unsure how USCIS is going to treat X, Y or Z, that uncertainty might lead to an application that won’t be filed. But when you have that clarity, when you have that certainty, that allows more companies to make that decision and move forward with those applications. 

Learn more about O-1 visas and read the full client story at bal.com.  

And now, the top U.S. and global immigration news. 

A group of farm and business organizations as well as the state of Mississippi have filed a lawsuit against the Department of Labor seeking to block implementation of a final rule expanding labor rights for H-2A workers. 

As BAL previously reported, the Farmworker Protection Rule was intended to provide improved protections for H-2A visa holders. However, the Office of Foreign Labor Certification within the DOL delayed implementing elements of the rule after a preliminary injunction was ordered in the U.S. District Court for the Southern District of Georgia. BAL will continue following this litigation and will provide updates as they become available. 

The U.S. State Department released the November Visa Bulletin. EB-1, EB-2 and EB-3 Final Action Dates and Dates for Filing saw no movement and remained the same as in October. All employment-based preference categories must use the Dates for Filing chart. 

Registration for the Diversity Visa 2026 lottery is open until Tuesday, Nov. 5. Applicants must register online by submitting the Diversity Visa entry form, which is available on the State Department’s e-DV website. Paper applications are not accepted. 

In global news, the European Commission announced the implementation date for the Entry/Exit System will be further delayed stating that it will be taking a “phased approach” to the system’s launch.  

The Canadian government announced changes to its post-graduate work permit, effective Nov. 1, which will have stricter language requirements and field of study conditions for international students as part of an overall plan to decrease the number of temporary residents from 6.5% of Canada’s total population to 5% by 2026. 

Find all of our news at BAL.com/news. Follow us on X at @BAL_Immigration. And sign up to receive daily immigration updates in your inbox at BAL.com/newsletter. 

We’ll be back next week with more insights from the world of corporate immigration. 

I’m Rebecca Sanabria. Thanks for listening. 

Copyright 

The BAL Immigration Report is provided by BAL. Copyright 2024 Berry Appleman & Leiden LLP. All rights reserved. Digital redistribution to the public is permitted only with express written permission of Berry Appleman & Leiden LLP. This report does not constitute legal advice or create an attorney-client relationship. Visit bal.com for more information.