Seeking to Hire the Best and the Brightest? Consider the O-1 Visa

It’s not as difficult to qualify for as many employers think, experts say

Roy Maurer By Roy Maurer September 17, 2019
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​The O-1 temporary work visa is thought of as the "celebrity visa" for academic heavyweights, Nobel Prize winners and movie stars—and while that's true, it's also a misunderstood and underutilized option for in-demand talent like highly educated technology workers or successful entrepreneurs.

The O-1 is reserved "for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements," according to U.S. Citizenship and Immigration Services (USCIS).

"The O-1 is for your rock stars and your unicorns—individuals who have had a great deal of success in their specific industry—but it's also for people who have quietly attained accomplishments in their field," said Sara Herbek, managing partner at law firm Global Immigration Associates in Chicago.

"If you look at the O at face value, it looks incredibly difficult to attain, so people think that it's tougher to get approved than it really is," said Rod Malpert, a partner at global immigration law firm Fragomen who manages the San Francisco and Phoenix offices.

Stephan Eggum, an attorney in Fragomen's Phoenix office, added that he and Malpert have worked on hundreds of O-1 cases and have a 95 percent approval rate.

Although Olympic athletes and award-winning scientists are sure bets for an O-1, the U.S. issues well over 10,000 extraordinary ability visas each year. "You don't have to be Einstein," Eggum said. "You just have to show that you're among the top individuals in your field. It has gotten harder during the Trump administration for a variety of reasons, but it's still easier than many people think."

The O-1 is often listed as an alternative for higher-educated H-1B candidates who don't get selected in the annual visa lottery for cap-subject petitions. Earlier this year, over 200,000 H-1B petitions were submitted for 85,000 visas.

"It's a good alternative for H-1Bs, especially for science and technology workers in research and development," Eggum said. "Typically, if a candidate has a Ph.D. in STEM [science, technology, engineering and mathematics], we can get an O-1 approved for them."

The O-1 visa is the closest that the U.S. immigration system has to a merit-based visa option, said Hendrik Pretorius, an immigration attorney and CEO of ImmiPartner, an immigration legal services firm based in Palo Alto, Calif. "The H-1B visa focuses on specific job duties and wages and a candidate's educational background, but the O-1 directly focuses on an individual's past proven ability."

The main impediment to considering the O-1 seems to be the misconception that it's unattainable for those not on the cover of Time magazine. "There does seem to be an unfortunate reality that people often fail to see themselves in the O-1 light," Pretorius said. "This self-doubt can and does stop qualifying candidates from giving the O-1 the chance it deserves."

There also appears to be a lack of understanding about the O-1 visa as being a realistic and useful option for entrepreneurs, he said. "With there being no actual startup visa available to entrepreneurs in the United States, those with an entrepreneurial bent resort to figuring out the limits they can push in pursuing business ideas while being tied to an employer on an H-1B. The O-1 should at least be given a chance."

[SHRM members-only toolkit: Obtaining U.S. Employment Visas]

Visa Basics

There are two types of O-1 visa:

  • The O-1A is for those who can demonstrate extraordinary achievements in science, business, athletics or education. To qualify, petitioners must have earned a major award or show evidence of at least three criteria, such as exclusive membership in a relevant organization; published material or scholarly articles in a specific field; significant contributions or commercial success in a field; or proof of peer review.
  • The O-1B is for those with extraordinary achievements in art, film or television.

Foreign nationals approved for an O-1 visa can generally be admitted for up to three years initially with unlimited one-year renewal extensions and no maximum stay.

Be aware that nationals from certain countries such as China are limited to a three-month visa, Eggum said.

Applying for the O

The processing time for an O-1 visa is relatively short, but preparing a petition can be more difficult than for other employment-based visas and requires a lot more documentation than, for example, a typical H-1B, Herbek said. "Set up realistic time frames and goals, because this petition is very document-heavy. There are a number of hard-to-meet requirements that each applicant must have in order to obtain the visa, making planning ahead very important."

Malpert said one of the key things to understand about getting an O-1 approval is knowing that there's a lot of room for creativity when putting together a petition. An important part of the process is thinking about how to tell the foreign national's story in a way that he or she will be considered extraordinary by USCIS.

Malpert and Eggum suggest candidates volunteer for peer review with a journal or at a conference to improve their chances of approval. "Ph.D.s typically have to publish at least one paper in their program, which could meet another criterion for original contribution and authorship of a scholarly article," Eggum said. "Other good candidates in STEM fields without Ph.D.s are people who are 10-15 years into their career, doing research, with 10-12 approved patents."

Malpert added that people who have created their own business and been successful, have made major business contributions in their field, have had articles written about them, or make a salary at or above the 75th percentile among their peers make good candidates for the O-1 visa. Eggum said he had a case approved for an HR director whose contributions to HR had been written about in national magazines.

"Top executives could be prospects for the visa as well," Herbek said. "Think outside the box. Executives may have been invited to appear on several panels around the world to speak about a process change or business transformation."

Part of selling the person's story to USCIS is having others attest to the person's contributions, she said. "You will likely need reference letters from people with knowledge of the expertise of the beneficiary."

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