How to stay in the US if you didn’t get an H-1B—and if you’re extraordinary

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Q. I couldn’t get an H-1B visa this year. My lawyer is recommending I apply for an O visa in order to stay in the US. What can you tell me about this category? Who gets them and how do I strengthen my application?

A: In 1990, Congress established a new category of visa for the United States—the O-1 visa for “aliens of extraordinary ability” in the arts, sciences, business, or athletics.  These candidates, dubbed the “extraordinary Os” by the immigration bar, exemplify the uppermost tier of their specialty field.  In today’s world of limited H-1B quotas and increasing mobility of talent, the O-1 is a visa that the business community should consider when hiring international executives to positions of exceptional specialization and authority.

To qualify, the petitioning employer must demonstrate that the employee it is sponsoring has achieved national or international renown in her area of specialization, and that the distinction of her accomplishments puts her at the top of her field, as one of the “rare few” at the pinnacle of their profession.

But how to do this? Envision then the leader of an innovation division for new product development at a major IT company.  If the employer can show that this leader has transformed some aspect of IT product lines, the O-1 may be an apt visa.  Or imagine how “extraordinary” the record can be of the head of a financial unit that is growing market share in a new region, for a bank that focuses on a particular type of investor?  Similarly, a journalist who has broken new ground on coverage of a developing interest among Gen-Yers and created a social media following could be an example of extraordinary talent.

The O-1 easily applies to the lead prize winners or celebrities in the artistic fields.  A known movie star, a globally recognized sculptor, or an operatic celebrity quality naturally for this category.  In the business world, that same star quality must be demonstrated, but in the form of a compelling success in a narrow field where the candidate has made a true commercial impact.

The O-1 is a visa that should be used with selectivity, but can complement the more routine classifications for H-1B specialty professionals, L-1 intra-company managers, and J-1 or H-3 trainees. It is available to those who are making their mark in the business world.

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