Whichever side of the immigration debate you fall on, it is an actual fact that since early 2017 obtaining work authorization in the United States as a highly skilled professional has become much more difficult. Among many statistics bearing this out, including the U.S. Citizenship and Immigration Services’ H-1B Employer Data Hub, there have been massive increases in case processing delays and denied cases. It used to be that the biggest concern for international skilled workers was getting selected in the H-1B lottery each year, based on the limited number of 85,000 new H-1B visas made available each year. Now that is only the first of several hurdles.
Looking at the list of visa options available to foreign nationals, as listed on the Department of State’s website, it may appear at first blush to be endless. However, upon closer consideration, the options for the great majority of skilled foreign nationals seeking employment or hoping to run their own companies becomes very short very quickly.
For the vast majority of highly educated and experienced professionals from across the globe being recruited by U.S. companies, the options provided by these companies appear to boil down to only one option, the H-1B. But is there a glaring visa option missing?
Why Only The H-1B?
It is true that the list of visa options available to highly skilled professionals seeking a solution for employment or to start their own business can be counted on one hand. However, there may be a few reasons why the number of options may be even narrower than required.
The first is the reality that in the world of corporate immigration law, the vast majority of cases are handled by immigration law firms representing the company as their paying client and at the same time entering into dual representation engagements purporting to also represent the immigration interests of the foreign national candidates. This type of dual representation is rarely seen in other areas of the law, for good reason.
The argument used to pursue this approach is that the interests of all parties are aligned during this part of the immigration case life cycle. However, as you can imagine, if a company decides for any reason, whether justified or not, that only an H-1B is an option, then that is the option that will be pursued without much further inquiry.
Further, it often seems to be the case that foreign national talent seeking to work in the United States are reluctant to rock the boat and instead wish to pursue the easiest visa option suggested. Interestingly, foreign national talent can often underestimate their leverage in setting immigration options due to the competitive labor market desperately seeking STEM talent.
One area where the convergence of these considerations ends up harming global talent seeking to contribute in the United States is the failure to consider one of the most underutilized but flexible visa options, the O-1 “extraordinary ability” visa.
Intent Behind The O-1 Visa
The O-1 visa, often known as the extraordinary ability visa, is the closest that the U.S. immigration system has to a merit-based visa option. The H-1B visa focuses on specific job duties and wages and a candidate’s educational background, and the entrepreneurial E-2 investor visa and L-1A new office visa focus on the standing of a business, but the O-1 directly focuses on an individual’s past proven ability.
The basic idea is that a foreign national with a proven track record should be allowed to enter the United States on this merit to apply these skills in the U.S. for the benefit of the country, whether as an employee or working on an itinerary of projects.
I believe the O-1 visa is underutilized. Considering the Department of State statistics, there are a comparatively small number of O-1 visas processed at U.S. consular posts worldwide, with only 16,904 O-1 visas issued in 2018. In comparison, there were roughly 179,660 H-1B visas issued; 41,181 E-2 visas and 74,388 L-1 visas.
Also note that this gap would be much larger if not for the annual H-1B quota placed on new H-1Bs available to those who are not already in this status, thereby artificially reducing the number of H-1B visas that can possibly be issued each year by the Department of State.
Why The O-1 Underutilization?
It is easy to just jump to the assumption that there just aren’t nearly as many extraordinary-ability foreign nationals as there are professional workers or entrepreneurs seeking the H-1B, E-2 or L-1. I think this answer is too simplistic.
Is it possible that when considering the O-1 visa as an option for global talent that the interests of all parties are not actually aligned? Not only does the O-1 provide more flexibility in project-based work, but the O-1 is generally not as streamlined of a process for immigration attorneys as is the more generic H-1B, thereby costing more money and taking more time.
Additionally, there also appears to be a lack of understanding about the O-1 visa as being a realistic and useful option in the entrepreneurial context. With there being no actual startup visa available to entrepreneurs in the United States, those with an entrepreneurial bent resort to figuring out the limits they can push in pursuing business ideas while being tied to an employer on an H-1B. Instead, the O-1 should at least be given a chance.
Lastly, there does seem to be an unfortunate reality that people often fail to see themselves in the O-1 light. This self-doubt can and does stop qualifying candidates from giving the O-1 the chance it deserves.
With this article, I do not mean to say that the O-1 visa is for everyone or easy, but I do believe that it is greatly underutilized in the U.S. immigration system as the U.S. works to attract the very best and brightest from around the globe.
The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation. www.immipartner.com
This article was originally published in Forbes on June 5, 2019