Bad luck in the H-1B lottery can land foreign nationals and their employers in a pickle.  Same is true if the employee’s sixth year of H-1B is about to come to a close, and there is not enough time to file a PERM or other immigrant case.  When the employee is a valued worker with strengths the company is loath to lose, it may be time to consider an O-1A:   a nonimmigrant visa for those of “extraordinary ability.”

Some in immigration law regard this visa category with fear and horror. Its standards echo the very high level EB-1A category, so much that a person who has a good O-1A may well have an approvable EB-1A case and a strong NIW case.  And, the nonimmigrant O-1 requires an employer sponsor whereas the immigrant EB-1A and NIW do not.  But if time is tight, an O-1 approval gives the beneficiary and the employer up to 3 years of breathing room (and is renewable year by year afterwards).

One measure of the soundness of this alternative is to ask: “is it more valuable to have this professional person in the position than a professional person in the position?”  If either the employer or the individual can give a well-justified “yes,” then O-1A is worth exploring.  The company must be willing to support the individual (though unlike with H-1B is not obligated to pay the fees).  However, the impetus can come from either side, and the case will be more likely to succeed if the beneficiary champions his or her own strengths.

The O-1 is easier than an immigrant visa in several respects. For one thing, the adjudications are less strict.  There is a technical requirement in both O-1A and EB-1A that the beneficiary be “the subject of sustained national or international acclaim.” The government is very serious about this for EB-1A beneficiaries:  they must first satisfy three criteria and then in a separate consideration, be found to reach the “sustained acclaim” standard.  O-1A beneficiaries, on the other hand, have only one step, and meeting three criteria can be enough.   In addition, the sameness of the EB-1A and O-1A language actually works to the foreign national’s benefit. They are not the same category, and many adjudicators understand that nonimmigrant classes have lower standards.   So, the interpretation of the language has to be softened for O-1A beneficiaries.

However, simple satisfaction of criteria is probably not enough.  The spine of the argument has to be the beneficiary’s measurable outstanding competence in some area.  Even so, there is wiggle room:  the statute says O-1A is for those of extraordinary ability in “the field of science, education, business, or athletics” but this has come to formally include “any field of endeavor,” defined however one wishes.  Also, there is this advantage:  The individual must be extremely good in his or her field; however, the particular job need not require someone with that level of skill.  It simply needs to be a job in the same field, possibly – but not necessarily – the one the beneficiary already holds.  And, there are no wage requirements.  That’s a break for employers, who, with the help of O-1A, may not have to lose a great worker just because they were unlucky in the H-1B lottery.