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Is the O.1A Visa the best option for Business and Tech Professionals?
 
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15 January 2019 / US Immigration /Blog / Series: O.1 

 

By: Shaune D. Fraser, Esq.

 

For tech, business, and corporate professionals, and even some F.1 students and J.1 exchange visitors, the O.1A classification has emerged as an increasingly popular visa category in lieu of the H.1B. 

Each year, hundreds of thousands of foreign nationals are immersed in the burdensome process of obtaining a U.S. employment visa. Due to the sheer volume of H.1B applications, these professionals often encounter employment and travel-related issues during this season. In 2018, the congressionally mandated limit of 85,000 H.1B visas (65,000 cap-subject & 20,000 advanced degree exemption) was reached within 5 business days.[1]

Later this year, in August, USCIS announced an extension of its suspension of the premium processing program for all FY 2020 H.1B cap-subject applicants and expanded it to include additional petitions.[2] The USCIS premium processing service allows employers to pay an additional $1,410 filing fee for expedited processing within 15 calendar days and has traditionally included H.1B petitions.

To further complicate this situation, USCIS has reinterpreted the definition of an H.1B “specialty occupation” to exclude positions that were approved in years past.[3] As a result, U.S. employers have received significant increases in requests for evidence (RFEs), adding further complexity, expense, and uncertainty to this onerous process.[4]

Unlike the H.1B visa, the O.1A classification has no annual numeral limitation/cap and there is no visa lottery.[5] This 3-year employment visa is reserved for individuals who possess extraordinary ability in the sciences, education, business, or athletics.[6] Per the regulations, “extraordinary ability” is exhibited through a showing of sustained national or international acclaim and a demonstrated record of achievement.[7]

Contrary to popular belief, this visa is available to tech, business, and corporate professionals who possess special skills in their area of expertise (not just Nobel Prize laureates or Oscar winners, et. al.). Talented professionals in these fields can establish eligibility through the submission of documentation that fulfills at least three (3) of the below-listed O.1A criteria:

  • Employment in a critical or essential capacity;

  • Original scientific, scholarly, or business-related contributions;

  • Published material about you in professional or major trade publications, or other major media;

  • Membership in associations;

  • Authorship of scholarly articles in the field, in professional journals, or other major media;

  • High salary or other remuneration;

  • Participation as an official judge/reviewer of the work of others; and

  • Receipt of a national or international award.[8]

Moreover, the USCIS premium processing program remains available to O.1A applicants, allowing for approvals to be secured very quickly (within 15 days) once the requisite documentation is obtained.[9] 

Despite the restrictive effects of the Buy American and Hire American (BAHA) Executive Order and associated policies on immigration categories such as the H.1B,[10] the O.1A visa remains a viable option for tech, business, and corporate professionals, and could be the best employment-based immigration option for qualifying foreign nationals.

 

For more information on the O.1A category or any other immigration options, please contact me at shaune@fraserpllc.com.

The information provided herein is for information purposes only. It is not intended as legal advice for any particular situation nor presumed as indefinitely up to date.

­­­Copyright © 2019, FRASER IMMIGRATION LAW, PLLC. All Rights Reserved.  


 
 

[1] Press Release, U.S. Citizenship and Immigration Services, USCIS Reaches FY 2019 H-1B Cap (Apr. 6, 2018), https://www.uscis.gov/news/alerts/uscis-reaches-fy-2019-h-1b-cap.

[2] Press Release, U.S. Citizenship and Immigration Services, USCIS Extends and Expands Suspension of Premium Processing for H-1B Petitions to Reduce Delays (Aug. 28, 2018), https://www.uscis.gov/news/uscis-extends-and-expands-suspension-premium-processing-h-1b-petitions-reduce-delays.  

[3] American Immigration Council, Challenging USCIS “Not a Specialty Occupation” H-1B Petition Denial (October 16, 2018), https://www.americanimmigrationcouncil.org/litigation/challenging-uscis-not-specialty-occupation-h-1b-petition-denial

[4]  National Foundation for American Policy (NFAP), H-1B Visas By The Numbers: 2017-2018 (April 2018), https://nfap.com/wp-content/uploads/2018/04/H-1B-Visas-By-The-Number-FY-2017.NFAP-Policy-Brief.April-2018.pdf 

[5] U.S. Citizenship and Immigration Services (USCIS) Office of Business Liaison, Employer Information Bulletin 15, “Aliens with Extraordinary Ability (O-1) and Accompanying/Assisting Aliens (O-2)” (Dec. 8, 2004), 82 Interpreter Releases 180-84 (Jan. 17, 2005); Legacy INS, J. Bednarz (Sept. 29, 1992), 69 Interpreter Releases 1471-72 (Nov. 16. 1992).

[6] 8 C.F.R. §214.2(o)(3)(iii).

[7] Id.

[8] 8 C.F.R. §214.2(o)(3)(iii)(B).

[9] U.S. Citizenship and Immigration Services, O-1 Visa: Individuals of Extraordinary Ability or Achievement, https://www.uscis.gov/working-united-states/temporary-workers/o-1-visa-individuals-extraordinary-ability-or-achievement.

[10] See Exec. Order No. 13788: Buy American and Hire American, 82 Fed. Reg. 18837, 18839 (April 18, 2017).