Introduction to Business Immigration

Supposedly, 51% of New Yorkers speak only English at home. Undoubtedly, the United States is a melting pot. Thus, the US job market attracts numerous foreign workers every year. However, before hiring a foreigner, an employer needs to consider the immigration options available to such an individual. I think it is also important to understand the immigration rules before applying for jobs in the United States. That’s why, I summarize some basics about two popular work visas.

H-1B (cap-subject) is likely the most common (and often the only available) work visa. Though, it comes with certain restrictions. Generally, employers need to file a petition for a foreign employee by April 1. Moreover, the sole fact that an employer submits the visa application does not mean that the visa will be granted because it is subject to the cap (meaning that only 65,000 individuals holding a college degree, and 20,000 individuals with a higher level of education will get the visa). If one’s visa is approved, he or she will be on H1-B visa starting on October 1.

H1-B (cap-exempt) is often an underestimated work visa. Institutions of higher education, (some) nonprofit and governmental research organizations are able to sponsor an individual at any time during the year (there are not subject to the April 1 deadline). Moreover, they are not subject to the cap, meaning that it is guaranteed that the individual’s visa will be approved if it is determined that he or she qualifies for it.

One of the criteria of the H1-B visa (both cap-subject and cap-exempt) is a prevailing wage requirement. In other words, the employer needs to show that it will pay the individual at least the prevailing wage for the specialty occupation in the geographic area of the intended employment. H1-B visa is issued for a period of three years, and then can be extended for another three years.

O-1A is a visa for individuals who possess extraordinary ability in the sciences, education, business, or athletics. Again, the employer can file for the visa at any time during the year, and needs to submit evidence that the beneficiary (meaning an employee) has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least three of the following:

  • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  • Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field;
  • Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought;
  • Original scientific, scholarly, or business-related contributions of major significance in the field;
  • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought;
  • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence;
  • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought;
  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation;
  • If the above criteria do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.

O-1B is a visa for individuals of extraordinary ability in the arts or extraordinary achievement in motion picture or television industry. It can be filed at any time as well as the employer needs to submit evidence that the beneficiary has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or evidence of at least three of the following:

  • Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;
  • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications;
  • Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials;
  • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications;
  • Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author’s authority, expertise and knowledge of the beneficiary’s achievements;
  • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence;
  • If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility (this exception does not apply to the motion picture or television industry).

Generally, O visa can be issued for up to three years, and then extended at one-year increments under certain circumstances.

I hope you will find this information helpful. However, always remember that everyone’s immigration situation should be assessed individually. If you have any questions, feel free to email me at



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