Alternatives to the H-1B visa, pt. 1: O-1 "Extraordinary ability"

status. The doctrine of dual intent, however, allows the nonimmigrant to seek permanent residence (a Green Card) while at the same time claiming that they intend to depart from the United States in a timely fashion. Therefore, the filing of a labor certification or a permanent immigrant petition benefiting the O-1 worker does not constitute a violation of their nonimmigrant status.

O-1 classification, however, does not permit “self-petitioning.” That is, an individual seeking O-1 classification cannot be both the petitioner and the beneficiary as is permitted in some cases. Another person or entity must file the petition benefiting the O-1 employee. A seeming anomaly, though, an anomaly not specifically addressed in the immigration regulations, does permit a corporation wholly owned by the O-1 beneficiary to file the petition on his or her behalf.

Perhaps most importantly, O-1 classification has a corresponding Green Card category and this category does not require the time consuming and expensive labor certification process which will be covered in a forthcoming column. The significance of this is that an individual in O-1 status may very well be on the “fast track” to a permanent Green Card.

An employment-based first preference Green Card may be afforded an individual, “of extraordinary ability in the sciences, arts, education, business, or athletics.” Sound familiar? Similarly, extraordinary ability in the Green Card context is defined as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” Therefore, O-1 beneficiaries frequently acquire lawful permanent residence through the same employment by which the obtained O-1 status.

In conclusion, with the chronic unavailability of H-1B visas, U.S. employers must seek alternative classifications of foreign workers they wish to bring to the United States. The O-1 Extraordinary Ability category is, in many instances, a viable alternative to the H-1B. The requirements for O-1 classification are not as onerous as one might first believe. Finally, with careful planning and close cooperation with a qualified and experienced employment-based immigration specialist, the O-1 category can, and often does, serve as a fast track to a permanent Green Card.

David Palinsky, an attorney, specializes in cases involving employment-based immigration, especially immigrant (permanent) and nonimmigrant (temporary) visas for the homeland security, hi-tech, and services sectors. You may contact Palinsky directly at; for general information, please e-mail a description of your situation to Readers may send Palinsky questions on topics and issues which are of interest to them and their businesses, and he will post some of these questions, and he answers to them, in the column.