Are you looking for a job in the United States? Certainly, there are many visa options to look for. However, H-1b visa and O-1 visa are among the popular choices that foreign nationals go for. Though both visas are nonimmigrant visas, they are different in many aspects.

This article has analyzed the basic differences between an O-1 visa and an H-1b visa so that you can make an intelligent decision while choosing a visa to apply for.

Who should apply for an O-1 Visa?

The O-1 visa is another nonimmigrant visa classification that provides temporary work opportunities to foreign nationals in the United States. The O-1 visa classification has two subcategories, namely the O-1A visa and O-1B visa.

O-1A visa classification – Individuals who possess extraordinary ability in the fields of science, education, business, or athletics can apply for an O-1A visa. You can your extraordinary ability by reliable evidence participation in these fields.

O-1B visa classification – Furthermore, individuals who have extraordinary ability in the field of arts or who can show that they have a record of extraordinary achievement in the motion picture or television industry and have national or international recognition because of their contribution to the field are eligible to apply for O-1B visa classification.

Who should apply for an H 1b Visa?

The H 1b visa classification is also a nonimmigrant worker classification that allows foreign workers to work in the specialty occupation jobs in the US. Specialty occupation jobs may include jobs that require practical application of your skills and theoretical knowledge gained during your bachelor’s degree.

For example, If you have done your bachelor’s degree in computer science, any job that requires coding may qualify you to apply for H 1b visa.

Eligibility criteria H 1b visa and O-1 Visa

H 1B Visa

The H 1b visa is for specialty occupation jobs, and some special requirements must be met before the United States Citizenship and Immigration Services (USCIS) will approve your H 1b petition. The requirements are as follows:

  • The foreign nationals require at least a bachelor’s degree from the United States or a degree from outside the US, which is equivalent to obtaining a degree from the US.
  • The degree obtained by the foreign worker must sufficiently relate to the specialty occupation job. That means the worker should have the required skills or knowledge to perform the technical duties in the specialty occupation. For example – Peter, an Ireland national, has done mechanical engineering in the US. Ivan hires Peter for the position of software developer in his company, in which the primary job duties are coding. Will USCIS accepts Peter’s H 1b petition? In this case, it is hard to prove that Peter has the required skills for coding as the area of his engineering is mechanical and not computer science. USCIS is unlikely to approve the petition.

O-1 Visa 

To show your eligibility for the O-1 visa is relatively tougher than the H-1 b visa. You have to show your extraordinary ability in the fields of the arts, sciences, education, business, or athletics.

In fields of science, education, business, or athletics, the extraordinary ability can be shown by national or international acclaim. You have to show that you are among that small percentage who have risen to the top in your field.

For example – you can prove that you have business-related contributions by showing that you have achieved major international awards or national awards or evidence of working in a critical or essential capacity such as CEO in top 500 companies or your published materials in major trade publications or other reliable evidence participation in the business field.

For arts, you can show your extraordinary ability by showing that your work is distinct. For example – you can show evidence of recognized national awards or acknowledgment of your work in major media channels or other reliable evidence.

You are also eligible for an O-1 visa if you can demonstrate extraordinary ability in the fields of the motion pictures or television industry. You can show evidence that your work is recognized nationally or internationally, and you are significantly above the ordinarily encountered in your field.

Application Process of H 1b and O-1 Visa 

O-1 Visa 

The US employer who wants to hire you for an O-1 visa has to file Form I-129 (Petition of nonimmigrant worker) on your behalf. The US employer must not file the I-129 petition before 1 year of the start of the employment, and also, the petition must be filed at least 45 days before the start of the employment to avoid any delays.

Along with the Form I-129, the petitioner should submit documentary evidence such as:

  • A written advisory opinion from an expert in your field or a peer group such as a labor organization will confirm that you have good standing in your field.

H 1b Visa

Since the H-1b visa is also a nonimmigrant visa, the US employer again has to file Form I-129 on behalf of the foreign national. However, before filing Form I-129, the US employer has to get an approved Labor Condition Application (LCA) from the Department of Labor (DoL).

This is a prerequisite condition and is mandatory. If H 1b petition is filed without an approved LCA, the USCIS will either deny the petition or send an RFE requesting an approved LCA from DoL.

The LCA typically contains the following attestations from the employer:

  • That the employer is paying the prevailing wage to the H 1b worker.
  • That the current employee’s wages and job conditions are not adversely affected by the H 1b worker’s employment.
  • That the current employees of the sponsoring employer are being notified of such hiring.
  • That such hiring of the foreign nationals is not because of any lockout or strike carried out by the already existing employees of the employer.

Once such attestation is made, the DoL will likely approve the LCA, and the employer can file Form I-129 along with the approved LCA.

If the USCIS approves your H 1b petition and you are in the US on any other visa, you will get your visa in line with such approval of your I-129 Form.

However, if you live outside of the US, you have to apply for a visa in a US embassy or consulate near your place of residence after USCIS approves your I-129 Form. You may have to go and give an interview where your original will also be checked by the embassy or consular officer, and you may also be required to give biometrics. The whole process is called consular processing.

Broadly there are three steps in your H 1b visa process: 

  1. Getting an approved LCA from the DoL 
  2. Submitting Form I-129 to the USCIS along with approved LCA 
  3. If you live outside of the US, apply for h 1b visa at the US embassy or consulate. 

Period of Stay O-1 Visa

An O-1 visa holder can stay in the US for an initial period of 3 years. When USCIS approves your O-1 petition, you get an addition of 10 days before and after the validity period of your petition. You are also eligible for extensions in 1-year increments depending on the length of your project or the time required to accomplish the initial event or activity.

For example – Ivan is a scientist and is managed to get an O-1 visa because of his extraordinary ability in science. His research project with a US firm can require anywhere between 3-5 years based on the achievement of the intended result. Ivan can apply for extensions if the project length goes further than 3 years in increments of 1 year.

Period of Stay H 1b visa

USCIS normally grants H 1b visa for an initial period of 3 years. The H 1b visa holder is eligible for an extension of 3 more years. After that, if the H 1b visa holder wants to work in the US on an H 1b visa, he has to go back to his home country for at least 1 year and apply again for the h 1b visa.

Family of O-1 and H-1b visa holders

O-1 visa holder

The O-1 visa holder’s family can apply for an O-3 visa for the same period of time the principal (O-1 visa holder) has their visa. The family means spouse and children under the age of 21 years of age.

The spouse and children cannot work in the US on an O-3 visa; however, if the children want to get an education in the US, they may apply for admission to a US school or college in that period.

H 1b visa holder

The H 1b visa holder’s family (spouse and unmarried children under the age of 21 years) may join the H 1b visa holder in the US on an H 4 dependent visa.

They may be eligible to work in the US depending on if the principal visa holder has started the green card process based on employment. If yes, the dependent can apply for Form I-765 Application for employment authorization.

Change of petitioning employer

O-1 Visa Holder

The O-1 visa holder can change the petitioning employer to a new employer if the new employer is ready to file Form I-129 on the beneficiary’s behalf.

H 1b visa holder

The H-1B visa holder can also change their employment if the new employer is sponsoring the beneficiary’s H-1b petition. The new employer has to get the new LCA approved by the DoL, and after that, he can file Form I-129. As soon as you get the receipt notice from the USCIS for your I-129 petition, you can start working for the new employer.

Time for submitting the petition

O-1 Visa

The O-1 visa applicants enjoy a certain privilege in respect of time for submitting the petition as compared to the H 1b visa holders. The sponsoring employer of the O-1 beneficiary can apply for their visa in any part of the year.

H 1b visa

However, on the contrary, for the H 1b visa, if the application is being made by the cap-subject employer, the application process starts at the beginning of April, and due to the cap on the number of applications, the applications are closed pretty soon.

Furthermore, even if you are lucky to get your visa approved, you can only start working for the H 1b employer until October, when the new fiscal year of USCIS starts.

Cap for O-1 and H 1b visas

O-1 Visa

There is no numeric cap limit placed on the O-1 visas issued by the USCIS each year. You can apply for an O-1 visa at any point of time in the year, and if USCIS officers approve your visa, you can start working in the US.

H 1b Visa

The US government is careful when creating H-1b visas about the excess supply of foreign workers in the US. Therefore, it placed an annual cap on the number of visas approved by the USCIS.

Currently, USCIS approves 85,000 visas each year, which includes 65,000 visas for individuals holding at least a US bachelor’s degree or its equivalent and 20,000 visas for individuals holding a US master’s degree or higher.

However, there are some employers who are not subject to the annual cap, such as the institution of higher education, nonprofit or government research organization, and nonprofit entities affiliated with an institution of higher education.

Which visa should I go for?

Certainly, there are some advantages and disadvantages of each type of visa, and you should make a choice that suits your qualifications and requirements.

Why should I choose H 1b visa?

Individuals should opt for H 1b visa classification if they think they cannot qualify for an O-1 visa because of its higher threshold.

In comparing the threshold requirement, H 1b visa is fairly easy to qualify for than the O-1 visa as it only requires a bachelor’s degree from the US in the field of the job of the US employer.

Furthermore, the family of the h 1B visa holder becomes eligible to submit an I-765 (application for employment authorization) if the H 1b visa holder has initiated the process of an employment-based green card by filing.

However, in the case of an O-1 visa, the family or other dependent cannot work in the US though they can get a US education while on their stay.

H 1b visa is a dual intent visa that offers the visa holder a privilege to hold dual intention – that is, the intention to become a US resident while on a nonimmigrant visa.

Why should I consider an O-1 visa?

O-1 visas, unlike h 1b visas, can be applied in any part of the year. On the other hand, the H-1b visas are usually applied for at the start of April month, and the window for application is closed when the applications have crossed the annual limit.

Furthermore, once your O-1 visa is approved by the USCIS, you can start working for your employer immediately, whereas, in H 1b visas, you have to wait until the USCIS next fiscal year starts, that is on 1st October.

There is no limit on extensions of the O-1 visa. As long as your project continues, you can get extensions in 1-year increments.

H 1b visa, however, is granted for a maximum period of 6 years unless you qualify for exemptions, and after 6 years, you have to go back to your home country and only become eligible to apply for a visa after a wait of 1 year.

There is no annual limit on the issuance of an O-1 visa. So if you qualify for the visa, USCIS will approve it. Whereas with H 1b visa, even if you qualify, you have to get selected in the lottery, and if you are not selected, you have to apply in the next year. You can still apply in H 1b jobs that are cap-exempted.

The choice is always in your hand. You can consult an immigration attorney from Herman Legal Group to know your best options. Whether it is H 1b or O-1 visa, as long as your visa is approved by the USCIS, you are good to go in your career in the US.

How can Herman Legal Group help you?

Need help navigating complex immigration laws and procedures? We can help. Who are we? We are part of Herman Legal Group, founded in 1995. We serve clients in all 50 states of the US, Canada, and throughout the world. Our team speaks over 12 languages, including Spanish, Arabic, Chinese, Russian, Serbian, and Bulgarian.

Get a consultation today with one of our experienced immigration attorney and resolve all your queries related to US immigration and your immigration application. Schedule a personal consultation with Attorney Richard Herman by calling 1-800-808-4013 or 1-216-696-6170 or by booking online. Consultations can be conducted by Zoom, Skype, WhatsApp, Facetime, or in-office.

 

 

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