Law Offices of Chris M. Ingram

Switch From H-1B to O-1A Now

If you have an H-1B graduate visa or are considering
applying for an H-1B Visa, then this article is essential reading.

Like everyone else, I’m watching the news and then trying to figure out precisely how and the President’s impromptu Executive Orders will impact the everyday U.S. Immigration life for our clients who have visas, clients whose jobs and businesses are at risk alongside other Americans, and those future clients who planning their next step.
There is certainly a lot to think about. So, I’ll do my best to share my thoughts and insights as best I can. I’ll cover what I can in this newsletter, but I’ll write more as often as I can because the situation is so fast-moving.

By Chris M. Ingram, LL.M., ESQ

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Each year, we literally have thousands of inquiries from clients and potentially new clients looking to get on a H-1B visa, or those who have been on a H-1B visa for years looking for a better alternative. So, what I’m going to focus on in this article is to define what a H-1B visa is, it’s pros and cons, and then compare it to the O-1A, and its pros and cons, so that you can make the best decision for you. My only agenda here is to not have anyone be forced to leave the U.S. or be barred from the U.S. due to unpredictable policy changes under this chaotic Presidential administration. My website has tons of additional information on these visas options so you can browse at your leisure.
H-1B In Summary
For the most part, the H-1B is designed to allow a limited number of alien workers (approximately 85,000 per year) with at least a bachelor’s degree or equivalent to work in the U.S. at the behest of a U.S. employer. H-1B Visas are issued for an initial period of 3 years, which can be extended up to an additional 3 years. If the H-1B alien has a pending underlying green card application in the works, they can stay in the U.S. until that green card is processed with additional H-1B extensions beyond the six-year limit. Moreover, and crucially, the U.S. employer does not have to prove that there are no Americans ready, willing, and able, to do that job.
H-1B visas are very difficult to get because in most years, way more than 85,000 U.S. employers apply for potential workers. H-1B visa applications are oversubscribed many times over. H-1B applications are expensive on employers to process, and thus U.S. employers would be highly reluctant to make these applications if there were available U.S. workers with the particular skill set required.
Moreover, depending on the Attorney used, plus the fact that the H-1Bs having one the highest USCIS government filing fees attached, running into many thousands of dollars per employee, one H-1B could cost the employer $8,000.00 in total. many U.S. employers apply for tens of candidates per year. So, it’s a very expensive process. So, again, U.S. employers only go down this route if there is no other practical way to fill the vacancy.
The release date of the quota 85,000 H-1B quota is April 1st, and the entire quota is gone on the same day due to oversubscription.
Finally, even if the employer is successful, the selected candidate is barred from starting with the company, (if they are not already working there under perhaps a student visa / OPT), until October 1st of that same year.
So, Congress has already and deliberately not made it easy to hire graduate aliens, so the U.S. employers would have ample incentive to hire Americans first. Fair enough. Yet, despite these disincentives to hire alien workers, the H-1B has never been more popular.
Why H-1Bs Are So Popular
H-1Bs are extremely popular because there is a huge demand for STEM professionals – (Science Technology, Engineering, and Math). There are many parts of America where finding a sufficient Americans to fill graduate STEM jobs is just not possible. There is a chronic shortage of STEM professionals in America. WE NEED YOU. After all, going to college in the U.S. is very expensive indeed ($30K-60K per year x 4) and with the falling birth rate in America, U.S. Employers are not able to meet the demand from local workers. The same is true in the medical field, especially in nursing).
The O-1A Visa, Why Switch Now
So, our beloved President has just paused the issuance of all new H-B visas to anyone who is not already physically present in the U.S. as of June 22nd, 2020. So, all those employers who just went through all the trouble and expense to secure their latest intake round of H-1Bs from overseas, who were looking to enter and start their placements October 1st, 2020 are now barred until the end of the year at the earliest unless the bar lifted due to a legal challenge. [Side Bar] – I’m sure there are already multiple lawsuits being prepared and filed challenging the legality of pausing any visa applications that has already been approved, but not stamped into the alien’s passport, being subject to this latest Presidential Executive Order. [End Side Bar].
So, all H-1B visa holders and future H-1B visa holders have to re-think their immigration strategies and consider alternative visa options.
How the O-1A Works
The O-1A is ideally suited for any graduate professional who has risen to the top or near top of their profession. So, O-1A is not suited to anyone who just got their bachelor’s degree last week. However, many H-1B aliens who have been in this status for approaching six years, have indeed worked their way up the ranks, some substantially so.
Perhaps the H-1B alien started a junior programmer and now six years later that are Software Architects, Senior Technical Leaders, Team leaders etc, perhaps with other professional accomplishments under their belts. Maybe even a patent or two.
Even if you’ve never had an H-1B before because you’re currently working abroad, and had been considered for a H-1B, if the above description of having reached the top or near the top of your profession applies to you, then you can skip the H-1B visa process altogether and seek O-1A sponsorship instead.
So, the H-1B requires that you have at least a bachelor’s degree in the field for which you are now being sponsored. So, as long as that is the case, and putting aside the costs etc, the H-1B application process is pretty straightforward in the hands of a seasoned practitioner. Many of the larger companies would simply apply for these visas ‘en masse’ / by the dozen or by even by the hundred in some cases, hoping to get as many candidates through the H-1B ‘lottery’ as possible.
In contrast, the O-1A requires the submission of personalized detailed presentation to establish that the alien has indeed risen to the very top of their field. So, O-1A visa applications a structured in a completely different way to a H-1B application.
I will not get into the actual qualification requirements for an O-1A in this article but link to them so you can review them separately.
Bottom line, whilst the H-1B may be the only option for new graduates, the O-1A visa presents a tremendous opportunity for experienced top-level professionals, not only in STEM but other fields too. Your employers definitely need to begin pivoting to this potential option, and you might need to be the ones who introduce them to this opportunity.
Advantages of the O-1A
The primary advantages of the O-1A is that there are no quotas, so you can apply at any time of the year and once approved you’re good to go. Also, as just intimated, there is no waiting until October 1st, of the year to before you can start on the job. So, again, you can apply today. You can even switch from your current H-1B to an O-1A just for safety, in case our beloved President makes further changes to the H-1B admission rules that could send you packing.
Finally, you can renew an O-1 visa indefinitely.
There is a lot more I’d like to cover on this topic but hopefully, I’ve given you enough information to get a conversation started. Again, please review the links I’ve provided in this article, and when you’re ready, submit an inquiry so we can personally consider your case.
We need to move fast folks because we cannot predict with any certainty or comfort future of U.S. immigration policy shifts when a president can literally turn certain visas off or on with an Executive Order.
Just so that you know, a President cannot change the terms or construct of any visa that has been enshrined into law by Congress, but he/she can turn it off or on.
Anyway, the above is good news for sure, and I look forward to working with you as we try and help as many folks as possible switch to the more reliable O-1A visa as quickly as possible.
Ok, that’s all for now. I’ll be posting again shortly to discuss options for L-1 Visa holders affected by the latest Executive Order.
We’re in this together 🙂
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Immigration Law Offices of Chris M. Ingram

Immigration Law Offices of Chris M. Ingram

US Immigration Law Offices of Chris M. Ingram
Chris M. Ingram LL.M., ESQ – Immigration Attorney
Admitted in New York.
Practice Specializing in US Immigration Law
401 Wilshire Boulevard, 12th Floor,
[Cross Streets 4th and Wilshire]
Santa Monica,
California 90401
Tel: 310 496 4292

Everyday the Law Offices of Chris M. Ingram provides a comprehensive range of US Immigration expertise. We also provide a free consultation for our prospective clients.

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Specializing in the E2 Visa, EB1 Green Card, L-1A Visa and O1 Visa and K1 Visa Marriage-Based Immigration. Attorney Chris M. Ingram is dedicated to providing the very best in US Immigration legal representation. Enjoy our website.

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