Ask Sophie™: What are the pros and cons of the H-1B, O-1A and EB-1A?

Here’s another edition of “Ask Sophie™,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie:

I’m an entrepreneur who wants to expand my startup to the U.S. What are the benefits and drawbacks of various types of visas and green cards?

The ones I’ve heard the most about are the H-1B, O-1 and EB-1A.

— Intelligent in India

Dear Intelligent:

I’m happy to hear you’re considering the O-1A extraordinary ability visa and the EB-1A extraordinary green card! Individuals often assume they need to have won a Nobel Prize or some other major award or be well known in their field to qualify for either the O-1A or the EB-1A — and that’s simply not the case.

“Particularly for folks from Asia, being a self-promoter is massively looked down upon. Humility is important,” says Navroop Sahdev, a pioneering economist and blockchain expert I recently interviewed for my podcast. Sahdev is founder and CEO of The Digital Economist, a Connection Science Fellow at Massachusetts Institute of Technology and a partner at NextGen Venture Partners.

She spoke with me about her immigration journey to the United States, which included two H-1B visas, an O-1A visa and an EB-1A green card.

Here are the pros and cons of each visa and green card that you listed.

H-1B visa

Overall, the requirements for the H-1B specialty occupation visa are not as stringent as those for the O-1A visa and the EB-1A green card, which is why many employers sponsor international students who are on an F-1 visa and recently graduated or on OPT (Optional Practical Training) or STEM OPT for an H-1B.

Because demand for the H-1B far exceeds the annual supply of 85,000, U.S. Citizenship and Immigration Services (USCIS) holds a random lottery to determine who can apply for an H-1B. (That random lottery is slated to switch to a wage-based selection process next year.)

In addition, the H-1B requires startup founders to give up their autonomy and a majority stake in their startup.

H-1B Specialty Occupation Visa
PROS	CONS
H-1B requirements are not as stringent as those for an O-1A.	Requires an employer sponsor and a valid employer-employee relationship, which means: H-1B startup founder must be supervised by someone who oversees the founder’s work and can fire the founder. A founder’s equity stake in the startup must be less than 50%.
Dual intent visa, which means it’s totally fine to be anywhere in the green card process.	The H-1B lottery only happens once a year in the spring with the earliest start date on Oct. 1 of that year; this year’s registration period is March 9-25.
Under the current random lottery system, the minimum salary for an H-1B recipient is low, which could be a plus if other compensation, such as equity or stock options, is high.	The number of H-1Bs is capped at 85,000 annually, with 20,000 of those reserved for individuals with a master’s or higher degree from a U.S. university.
Can be extended beyond the maximum six-year stay if waiting for a green card.	Demand for the H-1B far exceeds the annual supply.
Dependent spouse of H-1B holder eligible for a work permit once green card petition approved.	The odds of being selected in the annual lottery is about 1 in 3.
Eligible for premium processing.	Requires a Labor Condition Application (LCA) to the Labor Department, in which the employer certifies that hiring the H-1B candidate will not negatively impact the wages and work conditions of U.S. workers, among other things.
	Premium processing is often temporarily halted during the H-1B season.
	Allows for a temporary stay, not permanent residence.

O-1A visa

Overall, the requirements for the O-1A are more stringent than those for the H-1B but less stringent than for an EB-1A green card.

O-1A Visa for Individual with Extraordinary Ability or Achievements
PROS	CONS
Easier standards and requirements than for an EB-1A green card.	Requires an employer sponsor and job offer.
No annual cap and application can be submitted at any time of year.	Might require union letter or advisory opinion.
No Labor Condition Application required.	Only allows for a temporary stay, not permanent residence.
Eligible for premium processing.	The dependent spouse of an O-1A visa holder is not eligible for a work permit.
Quick turnaround time.
No limit on extensions.

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EB-1A green card

Under an H-1B, O-1A or any other visa, “You have very little leverage,” Sahdev points out. “Your employer has sponsored your visa so your conduct in the company is always at the back of your mind. What if they pull out that visa and what if they cancel you?”

The EB-1A green card avoids that situation. It is one of only two green cards in which the beneficiary can apply on their own without an employer sponsor or a job offer. And more good news: President Joe Biden issued a proclamation that ended the Trump-era ban on the issuance of green cards at U.S. embassies and consulates.

Keep in mind that like the EB-1, the EB-2 NIW (National Interest Waiver) green card does not require an employer sponsor. However, the eligibility requirements for the EB-2 NIW are less stringent than for the EB-1A. Some of our clients apply for an EB-1A and EB-2 NIW at the same time as a backup.

For individuals born in India and China, the downside to the EB-2 NIW green card is that they face a longer wait for a green card number to become available compared to the EB-1A.

EB-1A Green Card for Individual with Extraordinary Ability or Achievements
PROS	CONS
Possible to self-petition without an employer sponsor or job offer.	High evidentiary standard.
Does not require an LCA or PERM (Labor Certification required for EB-2 and EB-3 green cards).	Annual numerical and per-country caps exist, which means a backlog for people born in India and China.
I-140 application for EB-1 is eligible for premium processing.	Multiyear process.
Allows you to permanently remain in the U.S.
A dependent spouse can get work permission.
Eligible to apply for U.S. citizenship after five years as a permanent resident (green card holder).

As Sahdev says: “Take chances. Don’t wait for them.” Keep me posted on your immigration journey!

Best regards,

Sophie

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