Search
Contact
Login
Share this article
The H-1B visa lottery, unlike cash lotteries, is particularly painful to lose — because the odds of winning are substantially greater, and because so much time, energy and documentation are required to compete. Added to this emotional mix are the professional dreams of the beneficiary, as well as the potential economic impact of winning the lottery and achieving employment goals and financial sustainability. For some, the temptation is to wait out the loss and simply reenter the next pool or hope for second-round selection. However, with H-1B cap selections at a historic low, employers and employees alike should start thinking about H-1B alternatives early. One option is the O-1 visa for individuals with extraordinary ability or achievement.
The O-1 is a nonimmigrant work visa and can be a great alternative to the H-1B cap. There are two types: O-1A and O-1B. The O-1A visa is for individuals who are considered experts in the fields of science, business, education or athletics, while the O-1B is reserved for individuals who have achieved distinction and prominence in the arts. Individuals of all nationalities may apply for an O-1 work visa, and students with advanced STEM degrees or individuals with arts and design backgrounds are ideal candidates.
Unlike the H-1B visa, the O-1 is not subject to a cap. It may also be extended indefinitely and can be filed at any time during the fiscal year.
O-1 visa applicants are required to submit evidence that satisfies at least three of the O-1A or O-1B eligibility criteria. If you are on an F-1 student visa and started temporary employment under Optional Practical Training (OPT) or are in your first year of a STEM OPT, this is a great time to build your O-1 profile. The filing criteria you will have the most ability to control are: original contributions of significant impact, published work, judging the work of others, and awards and grants.
In the face of a non-selected H-1B cap registration, it is important to continue to develop, create and publish your work — especially since it’s one of the criteria options for filing an O-1. Original contributions come in many forms.
For researchers, tangible forms of original contributions include research papers, patents and presentations. Researchers should take advantage of opportunities to publish and submit papers to top journals or conferences in their fields. Research papers need to undergo the peer review process to satisfy this O-1 criteria. U.S. Citizenship and Immigration Services understands that journals have longer turnaround times than papers submitted for conferences, so focus on the quality of the journals to which you publish over the quantity of publications.
For business professionals, examples include strategic delivery of services or products, key accomplishments considered as significant in their field or novel use of technology in entrepreneurialism. For artists, original contributions are original, novel and creative designs and content.
Continue building upon your accomplishments by publishing and making the tangible forms of your original contributions available in your field to further the area of expertise. Additionally, if your work gains media attention, it may assist your O-1 application. However, you cannot ask a media outlet to cover your accomplishments or events — the outlet must decide to feature you independently. Company press releases, whether original or republished, are considered insufficient evidence for these purposes.
The O-1 guidelines recognize judging the work of others as a step toward establishing eligibility. In order to satisfy this measure, you must judge those who are considered your peers in the same or similar field of your expertise. This may be satisfied by peer reviewing articles for publication in journals or conferences, and by judging scientific, technological or creative competitions.
However, there is a pivotal catch: You can’t solicit an invitation to judge; you must be invited based on your accomplishments in the field. Submitting your work to journals and participating in conferences and competitions will increase your visibility with selection panels and therefore increase the opportunities to receive an invitation to judge your peers.
Joining a conference planning committee is another way to establish O-1 eligibility, especially if you become a conference committee chair or area chair. In this elevated status, you will receive multiple peer review opportunities to establish O-1 visa eligibility under this criterion.
The receipt of awards and grants is another O-1 criterion to consider when applying for an O-1 visa. Submit your work to competitions and exhibitions in your field of expertise with a national or international reach. If you place in the competition, it will not only increase your visibility in the field but also may be another step toward O-1 eligibility.
O-1 guidelines alternatively permit the submission of other evidence to establish eligibility. This may include work you shared online that received viral downloads or impressions.
If you are seeking employment, especially as a STEM student, consider applying to a nonprofit organization or educational institution.
Nonprofits and educational institutions provide opportunities to bolster your O-1 filing, especially if you gain membership in a committee that is applying for a grant. The principal researcher on the committee will receive credit for the grant (which can be used directly toward the O-1 awards criteria), but if you’re not the principal, you can still leverage the grant award to heighten the significance of your original work.
If you are an F-1 student visa holder, you should consider joining a nonprofit — and if you are close to exhausting your F-1 status, you may request having a cap-exempt H-1B visa filed on your behalf. The latter filing will buy you more time to continue your U.S. immigration journey and establish your O-1 eligibility credentials.
The O-1 work visa process is just that — a process. It is incumbent upon you to set aside reasonable time to amass the required evidence. Now is a good time to begin O-1 application preparation, as the process demands supportive documentation.
O-1 petitions require supportive documentation in the form of reference letters. The best strategy is to optimize the downtime following a recent H-1B cap non-selection to build your network of professional contacts and identify your reference recommendations.
Additionally, ask your employment recruiter to request an O-1 assessment for you. If the immigration specialists determine that you do not yet fulfill all the O-1 qualifications as a job candidate, they will typically inform your prospective employer.
Strategically converting an H-1B visa cap loss to a successful O-1 filing takes substantial planning and commitment to ensure success. Further, a successful O-1 filing lays a foundation for green card options for self-sponsorship in the EB-1A or NIW categories. But if you’re willing to stay the course, it ultimately preserves your ability to enter and work in the United States, increasing your odds of fulfilling your closely held employment and financial goals — especially in these uncertain economic times.
Cecilia Lai is a Senior Associate in the Dallas office of BAL. She represents employers whose economic sustainability and growth are dependent upon securing workers through the all aspects of business immigration processes with a specific focus on EB-1A, EB-1B, NIW and O-1 visa processes. She is a member of and past speaker for the American Immigration Lawyers Association. Committed to promoting Asian American awareness, Cecilia is also on the board of directors of the Asian Film Festival of Dallas, a nonprofit organization.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
The United States eased international entry requirements Monday for foreign nationals who are fully vaccinated against COVID-19. The country-based “physical presence” bans that had restricted air travelers from Brazil, China, Iran, South Africa, and most of Europe are now revoked.
Even with the new entry rules, however, the COVID-19 pandemic continues to present challenges for companies and their employees. The latest BAL White Paper, “Lifting the Travel Bans, Holiday Travel and Planning: What to Expect in the Coming Months,” provides details on the new U.S. entry requirements and highlights ongoing considerations for employers and employees as they plan to travel in the coming months.
Fill out the below form to receive your copy of the White Paper: