The fourth installment of Mitchell Williams' Immigration Series on alternatives to H-1B visas: O-1 Extraordinary Ability Petition.
Option 3: The O-1 visa may be an alternative to the H-1B visa depending on the particular background of the foreign national. For the O-1 visa category, an employer may sponsor a foreign national employee who has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.
Unfortunately, the O-1 visa has a much higher evidentiary threshold than the H-1B. Applicants for the O-1 visa, must have a level of expertise that indicates that the foreign national is one of the few who have arisen to the very top of the field of endeavor. However, it is worth noting that if the individual will be employed in a field related to the “arts” then the evidentiary level is not as strict. Instead, the foreign national would need to prove that he or she has a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered.
O-1 visas are not always easy to obtain, but there are no restrictions or limitations on the number of O-1 visas issued and an employer can petition a foreign national for an O-1 visa at any time. If the employer is unable to obtain an H-1B visa then it may be worthwhile to investigate whether an O-1 visa may be appropriate for a foreign national employee whose H-1B was not selected for the lottery.