By Jioselin Juarez

The H-1B visa has long been popular with US employers to fill temporary, specialty roles. Recently however, employers are facing various hurdles in getting H-1B visas for employees. One challenge is the United States Immigration and Citizenship Services (USCIS) has begun issuing H-1B visa denials without providing a reason.

In this time of uncertainty, it is important for employers to be flexible. Employees may meet the requirements for other work visas, and O-1A visas are a strong alternative to H-1Bs in some cases.

WHAT IS THE H-1B VISA?

The H-1B is a non-immigrant visa designed for temporary job roles. H-1B applicants must have a job offer for a specialty occupation in the United States.

WHAT IS A SPECIALTY OCCUPATION?

Specialty occupations require:

• The use of specialized knowledge, and
• A bachelor’s degree, or higher, in the specialty occupation

HOW ARE THE H-1B AND O-1A VISAS DIFFERENT?

The O-1A visa is like the H-1B, since they are both non-immigrant visas for temporary roles. Also, both O-1A and H-1B beneficiaries must be sponsored by an employer.

But while the H-1B visa is a good fit for specialty occupations, the O-1A visa requires an individual to have “extraordinary ability” in one of the following fields:

• The sciences
• Arts
• Education
• Business
• Athletics

To prove extraordinary ability, an O-1A visa applicant must show that they are part of the small percentage of elites at the top of their profession.

Some foreign nationals may qualify for both H-1B and O-1A visas.

THE ADVANTAGES OF THE O-1A VISA

Employers face uncertainty with H-1B visas that they can avoid with O-1A visas.

There is high demand for H-1B visas each year, and significantly more people apply than there are visas available. Further, H-1B employers are restricted by time, since workers may typically only stay a maximum of six years on the visa. The O-1A visa has neither of these limitations.

Features	O-1A	H-1B
Number Of Visas Granted Per Year	Unlimited	65,000 Visas Available Each April Applications Always Exceed Number Of Visas Available “Cap” Was Reached Within A Week In 2018
Visa Extensions	O-1A Workers May Extend The Three-Year Visa Up To One-Year Increments An Unlimited Number Of Times	Six Years Maximum Stay In The US* (* Employers Can Avoid This Limitation With Approved Green Card Applications, I-140 And I-485)

CHALLENGES FOR EMPLOYERS WITH THE O-1A VISA

O-1A visa requirements are stricter in some ways than H-1B. The visa applicant must show they have received:

• National or international acknowledgement for achievement in their field of expertise; or
• A “major, or internationally recognized award”

[8 C.F.R. § 214.2(o)(3)(iii)]

These requirements may be a high bar for some. However, if the visa applicant does not meet the above criteria, they can still qualify for an O-1A visa by providing evidence for at least three additional accomplishments.

These accomplishments center around different forms of acclaim or prestige in the applicant’s field. Importantly, an employer can use any similar evidence that does not fit exactly into one of the categories listed for the O-1A visa.

CONCLUSION

The O-1A visa has many advantages for employers, compared with the H-1B. Employers enjoy unlimited availability with O-1A visas, and extensions are also not capped.

Employers should consult with a trusted immigration attorney before deciding between an H-1B visa and an O-1A. An experienced Chugh, LLP attorney can help determine which visa is the best fit for your employee.