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The O-1A visa is a nonimmigrant work visa for individuals who are considered experts in the fields of science, business, education or athletics. Unlike the H-1B visa, a common route for highly skilled foreign nationals, the O-1A visa can be filed at any time during the fiscal year and can be extended indefinitely — plus, it’s not subject to a cap.
There’s been a 29% increase in O-1 filings from fiscal year 2021 to FY 2023, with an approval rate of over 90% in that same period.
U.S. employers continue to seek high-skilled talent to fill skills gaps and remain competitive, and the majority of graduate students in critical STEM fields like electrical engineering and computer sciences are foreign-born. Yet employers have few alternatives outside of H-1B visas to recruit and retain high-skilled foreign nationals.
Foreign nationals with extraordinary abilities and accomplishments in STEM fields and business may have another route via the O-1A visa. Learn more about requirements for the O-1 visa and contact BAL to schedule a consultation.
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As an HR or global mobility professional, your plate is already full. Adding visa requirements to the mix can feel overwhelming. But by familiarizing yourself with the different visa types, you can smoothly navigate the evolving immigration landscape and enhance your recruitment and mobility strategies.
To support your global hiring and relocation efforts, this article explores some of the most common nonimmigrant visa types and their specific requirements.
The H-1B visa is designed for foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as technology, engineering and healthcare.
Key requirements:
BAL insight: Previously, the H-1B lottery allowed multiple registrations for the same beneficiary by different employers, increasing the chances for certain individuals. In 2024, USCIS updated its rules and now limits registrations to one per beneficiary, the so-called beneficiary-centric process, regardless of how many employers submit registrations on the foreign national’s behalf. This change aims to level the playing field and give every applicant an equal chance of selection. Even if your H-1B registrations were not selected, BAL can work with you to identify alternative options.
The L-1 visa is for employees transferring within their multinational company to a U.S. office. There are two categories: L-1A for executives and managers and L-1B for employees with specialized knowledge.
BAL insight: L-1 applicants can apply under a company’s approved Blanket L petition, which allows applications for the visa directly at a U.S. Embassy or Consulate abroad or a Canadian port of entry (Canadians only). A company may qualify for a Blanket L petition by meeting certain regulatory criteria, including engaging in commercial trade or services, doing business for one year or more with an office in the U.S. and having three or more domestic and foreign branches, subsidiaries and affiliates. L-1B applicants are not eligible to apply under the Blanket if they do not have at least a bachelor’s degree in a related field.
The O-1 visa is for individuals with extraordinary ability in the sciences, arts, education, business or athletics, or extraordinary achievements in the motion picture and television industry.
BAL insight: The team at BAL has experience helping foreign nationals obtain an O-1 visa and can assess on a case-by-case basis for eligibility and evidentiary requirements. Check out our case study to see BAL’s visa expertise in action with a biotech company.
The TN visa allows qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.
The H-1B1 visa allows specialty occupation workers from Chile and Singapore to temporarily work in the U.S. An annual maximum of 1,400 Chilean national professionals and 5,400 Singaporean national professionals in specialty occupations may work in the U.S. in H-1B1 status.
The E-3 visa allows Australian professionals in certain specialty occupations to temporarily work in the U.S. A maximum of 10,500 Australian citizens per fiscal year are allowed to work in the U.S. in E-3 status.
BAL is committed to helping HR and mobility professionals reduce immigration complexity by guiding you through recent shifts in immigration policy. To help you stay informed, here are a few emerging trends that may impact your approach to hiring.
Immigration is a complex industry that requires specialized partners to help you navigate the ever-changing landscape in real time. To assist you in managing these challenges, we invite you to join BAL Community — an interactive forum developed exclusively for HR and in-house mobility professionals. By connecting with peers and experts, you can ensure your organization remains compliant and competitive in the global talent market.
Since 2021, the semiconductor industry has announced nearly $80 billion in new investments in the United States. Congress passed the CHIPS and Science Act of 2022 to strengthen semiconductor manufacturing, development and research and design in the United States. Most recently, on July 9, 2024, the Biden-Harris Administration announced an investment of up to $1.6 billion to establish and accelerate domestic capacity for semiconductor advanced packaging.
Importantly, the significant demand for high-end chips is the result of the recent surge of research and applications in artificial intelligence (AI). Advancements in AI research is centered on the use of high-performance chips to construct computing platforms. With the federal funding incentives and an increasing demand for chips, the U.S. semiconductor industry is positioned for high-stakes competition worldwide.
The semiconductor industry relies on a highly specialized combination of education, skills and expertise. Identifying key talent plays a pivotal role in this rapidly evolving industry. A shortage of skilled professionals could lead to delays or hinder the full utilization of invested capital.
Companies in the semiconductor industry are in a race to attract and retain talent to ensure their projects progress as planned to secure their market share and further invest in new research areas. As such, companies must be strategic in global workforce planning. This includes ensuring that their foreign national employee population maintains stable and secure options for U.S. employment authorization.
While there is a broad range of U.S. work permit categories, these are some of the most common visa classifications to hire highly skilled foreign national talent into the semiconductor industry.
H-1B visas are the most sought visa type among semiconductor companies, including but not limited to the following occupations: electrical engineers, electronics engineers, industrial engineers, software developers and logistics engineers.
The H-1B program permits employers to temporarily employ eligible foreign workers for a maximum of six years. One of the significant benefits of the H-1B visa is the possibility of extending the H-1B status beyond the statutory six-year limit if the foreign worker has reached certain milestones in the green card application process.
However, noted limitations to the H-1B visa program are timing and availability. H-1B visas are subject to a registration process and a lottery system. Employers that are interested in registering their employees in the H-1B lottery must plan ahead and implement contingency planning in the event the employee is not selected in the lottery.
The second most common visa type, particularly for global semiconductor companies, is the L-1 visa. The L-1 visa category provides opportunities for U.S. employers with qualifying international offices to transfer employees in either managerial (L-1A) or specialized knowledge (L-1B) positions from a foreign qualifying entity to their U.S. entity. The qualified employee must have at least one year of managerial or specialized knowledge experience with the foreign entity within the three years immediately preceding the filing of the L-1 petition.
For instance, companies may utilize the L-1 visa for an employee to transfer semiconductor device fabrication technology knowledge from a foreign entity to the U.S. entity. Companies also tend to transfer managers in different time zones to the U.S. to better manage their U.S. teams against tight project completion deadlines.
The L-1A visa can be renewed for up to seven years. On the other hand, the L-1B visa has a five-year limit. Engineers in the L-1B category may gain managerial responsibilities during their employment in the U.S. They are permitted to amend their status to L-1A to benefit from the additional two years of employment authorization. Companies who wish to sponsor their L-1 employees for a green card tend to start the process early, as it can take several years depending on the employee’s country of birth and visa preference category.
Pursuant to bilateral agreements between the U.S. and another country, certain nationalities are eligible for temporary nonimmigrant visas.
In general, individuals demonstrating extraordinary ability in business, science, education, art or athletics may qualify for an O-1 visa. Employers in the semiconductor industry tend to pursue this option for their engineers who have an advanced degree(s) and distinguished achievements, including published journal articles, peer review for academic journals, national or international awards and/or employment in a critical or essential capacity for distinguished organizations.
Employers may request up to three years initially and may extend the petition indefinitely in one-year increments. Due to the high legal standard as well as the significant required evidence for an O-1 visa, the preparation process is long and labor intensive. As such, employers should plan accordingly.
It is challenging to navigate immigration considerations while balancing the demands of an industry that is positioned to experience explosive growth. For this reason, it is critical for semiconductor companies to engage experienced immigration counsel to plan for and mitigate any possible employment interruption of their foreign national employee population.
BAL is a leading corporate immigration law firm with over 40 years of experience. We partner with organizations in the semiconductor industry and other tech fields to power human achievement, ensuring you have the highly skilled talent you need to be competitive. Our team of legal immigration experts will ensure a timely, compliant process that takes the administrative burden off your plate. Schedule a consultation to learn how we can support your immigration program.
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.
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