Is an O-1 or H-1B better for me?
Looking to work in the United States, but are not sure of your options? There are still many employment-based visa types available for prospective U.S. workers through an employer sponsor.
If you’re a prospective U.S. worker or employer and you are at all familiar with the H-1B lottery, you may be a bit remiss to engage in this process for several reasons. If you are interested in applying for the H-1B visa and your employer is subject to a cap, or if you’re a prospective employer who is turned off by the uncertainty and expense of the process, fear not! The O-1 visa may be your answer.
First, what is an H-1B?
The H-1B Program is designed to allow American companies and employers to hire temporary foreign workers for specialty occupations, particularly in STEM.
To meet the definition of a specialty occupation, the position being offered must require that:
A U.S. 4-year bachelor’s or higher degree in a directly related specific specialty, or its equivalent, is normally the minimum entry requirement for the particular occupation;
The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, evidence that this particular position is so complex or unique that it can be performed only by an individual with a degree;
The employer normally requires a degree or its equivalent for the position; or
The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
In addition, the sponsoring employer is required to pay the OFLC wage for the role and all fees associated with the filing, including the government filing fees and any professional services fees.
H-1Bs have been a popular option since they became available in the 1990s, but the program is complex and outcomes are not guaranteed.
What’s all the fuss?
1.) H-1Bs come with many restrictions:
Most employers are subject to a cap – Due to high demand, the number of H-1B visas issued annually is limited to, or capped at, 65,000, with an additional 20,000 for U.S. advanced degree holders whose advanced degree directly relates to the role being offered. The allotted 85,000 H-1B visa slots fill up quickly, so Homeland Security requires that employers pre-register their candidates, which creates the pool from which it selects its 85,000 lottery winners.
The H-1B lottery is conducted only once per year – The lottery opens annually in early March, and employers must register all current or prospective employees before the lottery closes and registrations are selected in early April.
If selected, an employer must file a petition for their current or prospective employee within 90 days. Regardless of if and when a petition is approved, the visa validity period itself does not begin until October 1st.
H-1B visas are valid for up to six years, unless you qualify for an exemption under AC21. If you do not meet exemption requirements, 1) you must be abroad for one year before you can apply again and 2) if your employer is subject to the cap, you must be selected again in a lottery in order to receive a new visa.
2.)The H-1B landscape is rapidly changing:
In the past, lottery winners have been chosen at random to proceed with their applications. This is changing as of February 27, 2026 – DHS is implementing a weighted selection process that will increase the probability that H-1B visas are allocated to higher-skilled and higher-paid foreign workers.
Employers must now pay a $100,000 fee to apply for certain initial H-1B applications. This temporary fee is set to expire on September 21, 2026.
What is an O-1?
An O-1 visa is a temporary work visa for individuals who have risen to the top of their field in the fields of science, education, business, art, and athletics. To apply for an O-1 visa, prospective employees must have a sponsor or offer of work, and:
Be able to prove their extraordinary ability in the sciences, arts, education, business, or athletics, or
Demonstrate a record of extraordinary achievement in the motion picture or television industries that includes the receipt of national or international recognition for said achievements
To prove extraordinary ability, applicants need meet only three out of eight criteria for an O-1A or three out of six criteria for an O-1B. Those criteria include:
Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;
Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;
Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field;
Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media;
Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
This provides prospective employers, employees, and their lawyers with 1) flexibility and 2) the opportunity to tailor the application to you and your unique skills and achievements.
What are the other advantages of the O-1 for a qualified candidate and their prospective employer?
You can apply and start work at any time of the year
You can apply even if you are subject to the 212(e) Two-Year Home Residency Requirement
Not subject to the H-1B cap/lottery
Not subject to restrictions (can renew indefinitely)
Not technically dual-intent and does not provide a path to a green card, but it offers a good path to future permanent residence through an immigrant petition such as an EB-1A
Gives you time to plan and continue to build qualifications for an immigrant visa like an EB-1
Under 8 CFR 214.2(o), O-1 visa applicants may concurrently have a pending or approved immigration visa without jeopardizing their nonimmigrant status
Better option for academics, as cap-exempt H-1B positions at universities and nonprofit research institutions exist but won’t meet most private sector needs
Either the petitioning employer or the prospective/current employee can pay the USCIS filing fees
No specific degree requirement*
Initial approval of up to three years, extendable in one-year increments tied to continuing work
*Specific jobs may have their own degree requirements
The choice of whether to enter the H-1B lottery or apply for an O-1 visa comes down to the candidate, and their unique education, experience, and influence in their chosen field. If you qualify, an O-1 petition is an exciting opportunity to flex your skills and acclaim and stand out as an individual. If you do not qualify for an O-1 just yet, you may still meet the requirements of an H-1B visa.
Not sure where you fit in? May Law Group has a demonstrated history of successful employment-based petitions, and we are ready to help you find your path. Contact us today to receive a complimentary review of your resume or CV and to schedule a free consultation to discuss your options.