Since a bachelor’s degree or an equivalent is the minimum degree requirement for an H-1B visa, this category is perhaps the most frequently used method for U.S employers to hire foreign nationals on a temporary basis.

  1. Severity of Unavailability of H1B
  2. What is an O-1
  3. Advantages of an O-1 Visa
  4. Requirements for the Employer
  5. Documentary Requirements
  6. Our Suggestions: Preparing the Application
  7. Conclusion

Severity of Unavailability of H1B

Despite all the advantages in an H-1B, there is an annual cap placed on the number of new H-1Bs that can be issued.. The cap was reduced from 195,000 to 65,000 starting with FY2004. This reduction had devastating consequences. The H-1B cap for FY2004 was reached on February 17, 2004. The H-1B cap for FY2005 was exhausted on October 1, 2004. Although the H-1B Visa Reform Act allows an additional 20,000 H-1B visas for FY2005 and for future fiscal years for foreign workers with a Master’s or higher degree from a U.S. academic institution, this is yet to solve the problem. The H-1B cap for FY2006 was reached on August 10, 2005. On January 17, 2006, the 20,000 H-1B numbers for Advanced Degree were used up.

Evidently, the H-1B cap will continue to be reached before the fiscal year even begins, and this cycle will continue until and unless Congress passes new legislation increasing the H-1B cap. On December 19, 2005, Congress declined legislation to increase H-1B numbers. We are hopeful that pro-immigration provisions including an increased H-1B quota will be reintroduced in other legislation.

Given the growing unavailability of the H-1B category as an option for employing highly qualified nonimmigrant professionals, employers may need to pursue alternative nonimmigrant visa options. One option that is available to hire such professionals is the O-1 category.

What is an O-1

The O-1 is a non-immigrant status for foreign nationals with distinction in their field of expertise. This includes physicians and scientists, medical clinicians, researchers, management consultants, IT professionals and others with superior qualifications in their field of expertise. It is also a status that provides a great deal of flexibility for those with a two-year home residency requirement, or who are finishing their sixth year in H status and are exploring other nonimmigrant opportunities.

Advantages of an O-1 Visa

The O-1 classification is an option for highly qualified aliens who either are not eligible for other nonimmigrant visas, e.g. H, L, or J, or who wish to avoid those visa classifications. The following are situations in which the O-1 visa may be appropriate:

  1. No LCA is required. Unlike H-1B, an employer wishing to file O-1 for a foreign national can bypass the Department of Labor and its prevailing wage and notice requirements.
  2. There is no limit to the number of O visa petitions that can be issued by USCIS, therefore there is no annual “cap” on these visas.
  3. The O-1 is not subject to a maximum period of validity, such as the H-1B six-year limit or the L-1 five-seven year limit. The O-1 can be obtained initially for up to three years and extended indefinitely in one-year increments. There is one drawback, however, that is, a long-term O-1 visa holder may experience difficulty returning to the U.S. in O-1 status, since it may appear that he or she no longer has the required nonimmigrant intent.
  4. If an individual is in J-1 classification or previously held J-1 classification and is subject to the two-year foreign residency requirement and that requirement has not been waived, this individual is ineligible for H-1B and L-1 visa/classifications, as well as Permanent Residency, but may obtain an O-1 visa/status.
  5. An O-1 holder can work for multiple employers. In cases in which there are multiple, concurrent or successive employers, an O-1 visa petition must be filed by each employer. To change employers, the new employer must file and receive an O-1 visa petition approval and the individual must be in valid O-1 status in the U.S. The new O-1 visa petition must actually be approved before the individual can start employment.
  6. No additional documents are necessary for an O-1 extension. As USCIS policy states, in a case relating to an extension of current status involving the same petitioner and beneficiary, and the same underlying facts, a prior approval of the case should be given deference, unless (1) there was a material error with regard to the previous petition approval; or, (2) a substantial change in the circumstances has taken place; or (3) there is new material information that adversely impacts the petitioner or beneficiary’s eligibility.
  7. An O-1 holder can concurrently hold O-1 status and adjustment of status. A person holding O-1 status can apply for adjustment to Permanent Resident status (Form I-485) and continue to use his or her O-1 status as the basis for work authorization. However, an adjustment applicant who also holds O-1 status can no longer use the O-1 visa stamp to travel and must apply for and be granted an Advance Parole document as an adjustment applicant before he or she departs the U.S.

However, for J1 holders who are unable to get a waiver, would not be able to file I-485 adjustment of status even when their I-140s get approved.

Requirements for the Employer

  • The employer has to be willing to sponsor the O-1 application for the alien. The law has no requirements as to the size and the revenue of the employer, as long as it employs the alien to work in his/her area of extraordinary ability. It also needs to show that the position requires the services of an alien of extraordinary ability or achievements.

For instance, the employer can hire the alien to work on a research project for a certain period of time. In the case of an O-1 athlete, a sponsor can file O-1 for athletes coming to the US to participate in sports activities.

  • The employer needs to obtain a written advisory opinion from a peer group, labor organization, or management organization with expertise in the specific field involved regarding the nature of the work and the alien’s qualification.

We have successfully obtained a written advisory opinion from the relevant US organization for a dancing group from China to participate in a cultural exchange program in the U.S. In case of O-1 applications filed for research scientists at universities or high-tech companies in the US, there is no such a labor organization to provide letters. Instead, we normally obtain testimonial letters from reputable scientists in the field to testify as to the nature of the work and the alien’s qualification.

Documentary Requirements

In order to prepare a petition for a nonimmigrant O-1 as an alien of extraordinary ability in the sciences, medicine or other professions, we require additional information about the alien’s achievements and distinctions in his or her field. Specifically, for an O-1 visa to be approved, evidence must be submitted from at least three of the following categories:

  1. Original contributions of major significance
  2. Material published about the alien
  3. Nationally recognized prizes, awards or distinctions
  4. Evidence of service in a leading or critical role for distinguished organizations
  5. Evidence of having served as a judge of the work of others
  6. High salary in comparison to others
  7. Authorship of scholarly articles, abstracts or presentations
  8. Membership in societies that demand outstanding achievement.

However, while the threshold requirement is three, we aspire to present evidence from as many of these categories as possible. Moreover, USCIS tends to look at the totality of evidence submitted, and does not merely “check off” that two or more criteria are met.

Our Suggestions: Preparing the Application

The USCIS adjudicators in reviewing O-1 petitions focus on whether the foreign national is one of the small percentage of individuals who have risen to the very top their field of endeavor. Accordingly, in determining whether to pursue this option, it is critical to define the individual’s field and his or her expertise within that field. Developing relevant evidence to meet the criteria set forth in the USCIS regulations is often a challenge requiring new and creative approaches.

Based on our experience in helping foreign nationals obtain O-1 approvals, we provide the following suggestions:

  1. In preparing the O-1 petition the aim is to clearly articulate, in layman’s terms, the foreign national’s qualifications. In this regard, please note that the examiners at USCIS may have little or no advanced training in science, medicine or the relevant field of expertise. Therefore, it is essential that the area of special expertise of the alien be clearly explained, defined and articulated in a manner that a lay person can understand.
  2. The common mistake that many employers and attorneys make is to focus on only one of the criteria; namely, publications. Yet, there are other criteria listed in the regulations that should be given equal weight in determining an individual’s eligibility for extraordinary ability. To satisfy the requirement that the alien has made significant contributions, we need to provide reference letters to discuss his or her research projects, whether he or she was the primary investigator, or the leader, why this research is significant, and any developments he or she has initiated or developed in the field.
  3. Provide evidence that the beneficiary’s papers were cited by his peers. Although it is not explicitly stipulated in the immigration law that citation is required, we noticed that USCIS frequently requested for such documents in its Request for Evidence (RFE) on submitted EB11 and NIW cases, as a evidence to prove the applicant’s research have great impacts in their fields. Since the requirements for O1 are the same as EB1, we would recommend that any evidence, including printout of SCI, copy of papers that cited the beneficiary’s research, and evidence that the genes discovered by you were collected by Genebank, etc.
  4. In addition, incorporating the regulatory language is particular important, as USCIS is more comfortable with its criteria and will more readily approve a petition that is structured using its language.

The regulations provide that “if the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility”. It is this regulation that gives employers the opportunity to become creative. Investigation and exploration into a particular field of expertise is essential to identify this “comparable evidence”. For example, depending upon the particular field, comparable evidence may include prestigious fellowships, expertise with advanced technology or a rare combination of skills. The key is determining how individuals within that field are judged and evaluated, and portraying the foreign national according to those standards.

Conclusion

There is a widely held belief that the O-1 standard of “extraordinary ability” is only available to research scientists with more than 50 publications. This has discouraged many employers from pursuing this option. However, based on our experience, if properly prepared, the O-1 should be a viable option for highly skilled professionals.

Samples of Approved O1 Petitions

O-1 visa approved for B-1 visa Holder. Beneficiary came to the United States to participate in an international conference. Petitioner was a private high tech company engaged in research and development of photo-electronic computer technology. We argued that the beneficiary was an expert with extraordinary research and development experience in photo-electronic materials and devices and that the petitioner decided to retain the beneficiary to lead the research project on silicon-based semiconductor photo-electronic materials.

O-1 approved for J-1 visa holder: Beneficiary was a postdoctoral researcher at the University of Oklahoma in a J-1 visa subject to two-years home residence requirement. The approval was based on our strong arguments emphasizing that the beneficiary has been playing a leading role in a US DLA funded project on pulsed laser deposition (PLD)-Infrared Dome Window Coatings. His continuing contribution in this cutting-edge technology in the national defense industry has had a significant impact on the quality and safety of aircraft and space shuttles.

O-1 visa approved for F-1 student: Beneficiary received his Ph.D in Chemistry from the University of California. Hired by a research company to work on a DOE founded project, the beneficiary’s research focuses on nanoscale fabrication for enhanced properties. The employer is a non-exempt company, and the H-1B cap for 2005 was reached. We therefore proposed to file a change of status from F-1 to O-1 on behalf of the foreign national.

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