Immigration matters / David B. PalinskyAlternatives to the H-1B visa, pt. 1: O-1 "Extraordinary ability"

Published 23 September 2008

The U.S. immigration services received more than 163,000 petitions for the 65,000 regular H-1B visas allocated for FY2009; the homeland security, hi-tech, and services sectors, as well as academic and research institutions, need another way to bring to the United States qualified foreign workers and researchers; one such way is the O-1 “Extraordinary Ability” visa

In my “Immigration Matters” column of two weeks ago (see “The H-1B program: Mend it, don’t end it,” HS Daily Wire, 9 September 2008) I outlined several problems with the H-1B “Specialty Worker” visa program and suggested some remedial measures which would enhance the ability of U.S. employers to hire and retain the educated and highly trained foreign workers they so desperately need.

As indicated in my previous column, U.S. Citizenship and Immigration Services (USCIS) received more than 163,000 petitions for the 65,000 regular H-1B visas allocated for FY2009. Additionally, USCIS received approximately 31,200 petitions for the 20,000 “advanced degree” H-1B visas exempt from the 65,000 cap.

Clearly, the homeland security, hi-tech, and services sectors as well as academic and research institutions need the ability to bring foreign workers to the United States in order to remain competitive in the world economy. Without the H-1B visa, these companies and institutions must find alternative means to secure the services of these workers.

In this and subsequent columns I will discuss some of the available alternatives to the H-1B program. Here I will address the O-1 “Extraordinary Ability” visa. Before I begin, however,I must reassure potential O-1 employers and employees alike: Do not be alarmed by the designation Extraordinary Ability. The extraordinary ability threshold is not as onerous as one might think.

First, a word about terminology: In the context of both nonimmigrant (temporary) and immigrant (permanent Green Card) visas, the employer is referred to as the “petitioner” and the employee as the “beneficiary.” Consequently, the employer’s visa application benefiting the employee is referred to as a “petition.”

Extraordinary ability in the arts requires only “distinction,” defined as “a high level of achievement in the field of arts as evidenced by a degree of skill and recognition substantially above that ordinarily encountered ….” This category only requires that the artist is “prominent in his or her field of endeavor.”

Though extraordinary ability in science, education, business, or athletics is defined as “a level of expertise indicating that the person in one of the small percentage who have arisen to the very top of their field of endeavor,” in practice, the standard is often satisfied by one who has achieved only a certain “prominence” in his or her area of expertise.

While extraordinary ability in science, education, business, or athletics can be demonstrated with such evidence of national or international acclaim as receipt of a major internationally recognized award such