O-1 Visa Under Trump

It seems like every aspect of the nonimmigrant visa world is under fire these days. From talks of increasing the requirements to random inspections of workplaces to making it more difficult to renew a visa, many people who are looking to work in the U.S. under a temporary visa have growing concerns about the future of immigration. While there seems to be a newfound emphasis on admitting highly-skilled workers, that doesn’t mean it’s making it any easier. Let’s take a look at the O-1 visa and how increased pressure on other nonimmigrant visas is making things more difficult.

How the O-1 Visa Works

The O-1 visa is a highly sought-after visa that has a very high barrier to entry. To qualify for this visa, you must be extraordinary. You need to show that you are part of a small percentage of elites in your field or industry. In fact, there are two different subcategories for these extraordinary qualifications:

O-1A Visa: This is for those that can demonstrate extraordinary achievements in the fields of science, business, athletics, and education. To qualify, you can either show that you have earned a major award (like a Nobel Prize or Olympic Medal) or you can show evidence of three achievements from this list of qualifying evidence.

O-1B Visa: This is for those that have achieved the extraordinary in art, film, or television. Qualifying for this requires an award like an Oscar or a Grammy. In lieu of this, you can show that you have achieved three of the items from this list.

One of the reasons that the USCIS requires such high standards is because of the benefits that come along with an O-1. For instance, you are not necessarily bound by any employer, your sponsor can be a U.S. agent who represents you professionally. Another benefit is the fact that you can renew the O-1 visa indefinitely as long as you can show that our presence in the U.S. is still required. Lastly, the O-1 is a dual intent visa, which means that you can apply for your green card while under O-1 status.

Trump’s Pressure on the H-1B

The O-1 is an advantageous visa, but because of the high standards for qualification, it isn’t the most popular nonimmigrant option. While few direct actions have been taken against the O-1, increasing pressure on other visas such as the H-1B could have a serious effect on extraordinary workers.

There has recently been a rising sentiment that is geared toward “protecting U.S. workers”. The USCIS under the Trump administration has noticed that some employers tend to take advantage of things like third-party sites (work sites for the clients and customers of the sponsoring employer) to circumvent some of the H-1B rules. In particular, the Service is looking to crack down on outsourcing firms that hire workers with the express purpose of outsourcing them to another company.

These moves have meant increased scrutiny for H-1B visas and more denials, with denials reaching 22% and Requests for Evidence reaching 69% by the end of 2017. All of this pressure is driving toward restricting legal immigration for those that are not deemed as “highly-skilled” workers.

How This Affects the O-1 Category

So we’ve talked a lot about the H-1B, but how does this affect O-1 visa applicants and holders?

Firstly, the increased scrutiny is across the board, not just limited to the H-1B. In October of 2017, the USCIS released a memorandum that instructed evaluating officers to treat renewal applications for visas that use the I-129 petition as though they were initial petitions. Because one of the main advantages of the O-1 visa is the fact that it can be renewed indefinitely, this could result in more difficulty staying in the U.S. The burden of proof will be on the petitioner to essentially prove to the USCIS that you are qualified for an O-1 visa all over again as opposed to having the officer take your previously approved petition into account.

Additionally, the increased difficulty in getting an H-1B could drive applicants (or third party staffing firms) to turn their eyes to other visas such as the O-1 visa for exploitation. Because there is a variety of criteria that could qualify an applicant, there are many ways in which the visa can be abused. If this happens, there may be policies directed at the O-1 in the future. However, this is just speculation—we will need to see how the political climate changes over the next few years.

Transitioning to a Green Card

Fortunately, the O-1 visa has dual intent, so getting a green card is an option if you wish to make your stay more permanent. However, for many petitioners—namely, those in India and China—the wait for a green card can be several years or even a full decade. In past years, President Trump has expressed interest in shortening this long wait, but we have yet to see movement in that direction, at least until now.

The Border Security and Immigration Reform Act, known as the Goodlatte Bill named after the congressman who introduced the bill, is a multifaceted piece of legislation. There are several aspects of this bill that you can read about in the press release, but we’ll focus here on the new green card system.

The Goodlatte bill proposes a removal of the per-country limit on employment-based visas, which would effectively eliminate the visa bulletin and the priority date waiting time. In the place of this, the bill proposes that a new system based on points be instituted. Factors such as skills, training, education, experience, military service, and mastery of the English language all gain the applicant points in this system. Once the applicant has gained the required number of points, they can adjust their status. Preference will be given to those that earn the required points more quickly and children who were brought in the U.S. legally.

The upshot of this is that green cards may become easier to obtain for some and more difficult for others. It may also make getting a green card more expensive. In all cases, it seems that this would reduce the amount of time that qualified individuals would need to wait in order to get their visa. However, one large caveat is that the bill requires that Congress fund the building of a wall across the southern border of the U.S. before the new green card system is put into place.

The president himself is skeptical about whether or not the bill will pass in the Senate, as Republicans hold a majority of 51 while at least 60 votes are needed for it to pass.