The O-1 and H-1B work visas enable foreign nationals to live and work in the U.S. temporarily. Although the experience of being employed on an H-1B and O-1 visa is similar, the process of qualifying and applying differs. In addition, the O-1 and H-1B have different benefits and advantages.
Introduction to O-1 and H-1B Visas
Foreign nationals need legal work authorization to work in the U.S. (for a U.S. company or a company abroad). There are several ways that visitors can obtain U.S. work authorization, and one of the most common ways is through an employment-based visa (also called a work visa).
The O-1 and H-1B are two of the most common employment-based visas in U.S. immigration. Both provide temporary work authorization for skilled workers, allowing them to work for a sponsoring U.S. employer. The H-1B and O-1 are employer-specific, meaning the work authorization is only valid for one sponsoring employer.
Both visas are temporary and typically limited to three years of work authorization. After the initial validity period, both H-1B and O-1 visas can be renewed, but H-1Bs can only be renewed for six total years, while O-1s can be renewed indefinitely. The O-1 and H-1B allow visa holders to bring a spouse and unmarried children under 21 years of age to the U.S.
The O-1 Visa for Individuals with Extraordinary Ability
There are two types of O-1 visas: O-1A and O-1B. Both O-1 subcategories are meant for professionals who have risen to the top of their field. The O-1A is for entrepreneurs, scientists, engineers, athletes, and other highly skilled professionals in various fields, whereas the O-1B is for artists, actors, and performers. The O-1A and O-1B visas have slightly different criteria but are otherwise similar.
Advantages of the O-1 Visa:
- No degree requirement: Technically, you could be a high school dropout and still qualify for the O-1 Visa
- No lottery or annual cap: Unlike the H-1B, there is no limit to the number of O-1 visas granted each year. Apply anytime and begin working anytime without worrying about being chosen in a random visa lottery.
- Flexible criteria: Both O-1 subcategories have flexible criteria. For the O-1A, you can qualify by satisfying three or more of eight flexible criteria. For the O-1B, you can qualify by meeting two or more of six flexible criteria.
- Unlimited extensions: Although the O-1 is a temporary work visa, it can be a permanent solution. O-1 visa holders can apply for indefinite extensions.
- Work for numerous employers: Foreign workers can hold numerous O-1s simultaneously, allowing them to work for multiple employers simultaneously.
Downsides to the O-1 Visa:
- No work authorization for spouses: Unlike with the H-1B, spouses of O-1 visa holders do not have work authorization in the U.S. Instead, they must apply for a separate work visa if they wish to be employed in the U.S.
- Long and detailed visa petitions: O-1 visa petitions often require substantial documentation, often with hundreds of pages of evidence.
- Small complications when applying for a green card: Applying for a green card is more straightforward on H-1B status. O-1 visa holders cannot declare an intent to immigrate to the U.S. when entering the country on O-1 status, and most immigration attorneys advise O-1 holders to avoid applying for a green card until they have been in the U.S. for at least 90 days. In addition, O-1 visa holders cannot travel internationally while a green card application is pending unless they have Advance Parole.
The H-1B Visa for Specialty Occupation Workers
Hundreds of thousands of immigrants apply for the H-1B visa each year. Most U.S. employers are familiar with it, and it has relatively straightforward requirements. The H-1B has a few benefits that the O-1 does not offer. However, the H-1B has some significant disadvantages, making it a less-than-ideal visa option for many immigrants.
Advantages of the H-1B Visa:
- Work authorization for spouses: H-1B holder's spouses can work for any U.S. employer on their H-4 status.
- Easy change of employer: H-1B visa portability allows H-1B visa holders to change employers relatively easily.
- Generic requirements: The H-1B is somewhat easy to qualify for as long as you have a Bachelor's degree related to the field in which you'll be working.
Downsides to the O-1 Visa:
- Annual visa cap and lottery: The H1-B is a "capped" visa, meaning only a limited number of new visas are available yearly. Most years, the U.S. Citizenship and Immigration Services (USCIS) runs a visa lottery for H-1Bs. Before applying for the H-1B, applicants must be selected in the lottery.
- Prevailing wage requirement: Employers must pay H-1B visa holders a minimum prevailing wage based on their job title and region. This can be a challenge for some companies.
- Strict start dates: Regardless of when an H-1B application is filed, the start date is always in October.
- Limited validity: The H-1B is initially valid for three years and can only be extended once for an additional three years. After that, H-1B holders must leave the U.S. for at least a year before reapplying for another visa or have an approved I-140 and actively pursue a green card.
H-1B vs O-1: Which One is Best for You?
If you qualify for both the O-1 and H-1B, the O-1 may be an obvious choice, given its advantages. However, if you have a spouse that wants to work in the U.S., you may opt for the H-1B. If you have difficulty deciding between these two visas, start a conversation with our global mobility team today.