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No luck with H1B lottery; STEM graduates may consider O-1

Published: 08/04/2022

Many foreign students and workers have been anxiously waiting for a second lottery drawing for H-1B visa numbers.  As of now, USCIS has not announced information about a second drawing for this year.  For FY 2023, USCIS received 483,927 total H-1B registrations in March and selected 127,600 registrations for further processing.  This contrasts to only 87,500 selections from 308,613 total H-1B registrations for FY 2022.  The larger number of initial selections this year means that there may or may not be a second or third drawing.  Hence, foreign workers should consider other visa options if they wish to stay in the United States.  One such option is the O-1 visa.

The O-1A visa is reserved for individuals with an extraordinary ability in the sciences, education, business, or athletics. The O-1B visa is reserved for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.   

Recently, USCIS has updated its policy to further clarify how USCIS evaluates evidence to determine eligibility for O-1A petitions in regard to applicants in science, technology, engineering, or mathematics (STEM) fields. Specifically, this update clarifies that being named on a competitive government grant for STEM research can be a positive factor towards demonstrating that a beneficiary is at the top of the beneficiary’s field of endeavor – a requirement for O-1 visa.  

In recent years, the U.S. government has emphasized the importance of STEM fields and taken measures to make it easier for STEM graduates and professionals to apply for immigration status. For example, the list of STEM majors has been greatly expanded to include some non-traditional science subjects such as Industrial and Organizational Psychology, and Social Sciences, Research Methodology and Quantitative Methods. The new O-1 policy is just another example.

The new policy makes it easier for applicants to apply for an O-1A visa, which requires evidence of extraordinary ability. Such evidence may include patents, original scientific discoveries, published research papers, media reports, national and/or international awards, etc.  Many graduate students and postdoc students engage in research activities that are funded by government agencies.  Hence, by showing that one was named in an approved competitive grant of the government, an applicant will have a better chance of getting his/her O-1 petition approved.

There are many advantages that come with an O-1 visa. For example, unlike the H-1B visa, O-1 does not have an annual visa cap.  There are no limits as to how many O-1 visas the government can approve.  While H-1B employment cannot normally exceed six years, O-1 workers do not have such a limit.  There are also no requirements for specific degrees or qualifications; the employer also does not have to prove that the offered position is a specify occupation.

This is not to say that all H-1B applicants should apply for O-1 status.  While the O-1 visa is a non-immigrant employment visa, the requirements are similar to the EB1A extraordinary ability alien immigrant visa. To qualify for an O-1 visa, one must demonstrate extraordinary ability by sustained national or international acclaim in their profession. Extraordinary ability in the fields of science, education, business, or athletics means a level of expertise indicating that you are one of the small percentage who have arisen to the very top of the field.   In practice, USCIS seems to be more willing to approve O-1 petitions than EB1A petitions, perhaps because the latter are for permanent immigrant visas.  Hence, those who qualify should seriously consider submitting an O-1 petition.

Read More:Myimmigrationlawyer

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