At a Glance

• This year, the United States Citizenship and Immigration Service reports that it selected 110,791 H-1B beneficiaries —25,791 more than the cap. Because the number of eligible H-1B beneficiaries is substantially larger than the H-1B cap, even foreign nationals eligible for approval of an H-1B petition had a slim chance of being selected in this year’s lottery.
• Petitioners for those beneficiaries who were unsuccessful in the FY2024 H-1B lottery may consider applying for O-1A status.
• Like H-1B applications, U.S. employers, U.S. agents or foreign employers through a U.S. agent must sponsor an O-1A beneficiaries’ application (i.e., the O-1A cannot be self-sponsored).

As June comes to a close, employers of the lucky foreign nationals selected in the FY2024 H-1B lottery are working to file their H-1B petitions by the June 30, 2023, deadline. This year, the United States Citizenship and Immigration Services (USCIS) received 758,994 eligible H-1B registrations while the FY2024 cap remained set at 85,000 (with 20,000 of these spots reserved for foreign nationals with a U.S. master’s degree or higher). Selection in the H-1B lottery does not guarantee H-1B status. This year, USCIS reports that it selected 110,791 beneficiaries —25,791 more than the cap — expecting to reject some H-1B petitions. Because the number of eligible H-1B beneficiaries is substantially larger than the H-1B cap, even foreign nationals eligible for approval of an H-1B petition had a slim chance of being selected in this year’s lottery. Eligible H-1B lottery registrations have increased substantially each year since the electronic system was introduced in FY2021, indicating that obtaining H-1B status will continue to become more difficult.

Petitioners for those beneficiaries who were unsuccessful in the FY2024 H-1B lottery may consider applying for O-1A status. Like the H-1B, the O-1A is a nonimmigrant work visa status based on extraordinary talent and ability. USCIS grants O-1A status to “individuals with an extraordinary ability in the sciences, education, business, or athletics.” USCIS only grants O-1A status to those at the “very top” of their field, a much higher eligibility standard than the H-1B visa. Notably, there is no cap on the number of O-1A petitions that may be approved in a given fiscal year. Accordingly, beneficiaries seeking temporary work authorization who meet the heightened requirements for O-1A status may be more successful pursuing this approach rather than relying on the H-1B lottery. Additionally, if petitioners sponsor more beneficiaries for O-1A status, they will free up H-1B slots for those with no alternative options, increasing other H-1B beneficiaries’ likelihood of success in the FY2025 H-1B lottery.

Like H-1B applications, U.S. employers, U.S. agents or foreign employers through a U.S. agent must sponsor an O-1A beneficiaries’ application (i.e., the O-1A cannot be self-sponsored). If a peer group (such as a labor organization) with expertise in a beneficiary’s field exists, the petitioner must obtain a written advisory opinion from the group, highlighting the beneficiary’s extraordinary achievement in the field. For many types of individuals with extraordinary ability — especially researchers — no appropriate group exists, and in these cases, applicants can obtain support letters from recognized experts within their field; these expert support letters, especially from independent experts outside of the beneficiary’s circle of colleagues, build a critical foundation for O-1A cases. O-1A petitioners must also provide evidence that they meet at least three of eight evidentiary criteria demonstrating their extraordinary ability. USCIS recognizes the following as O-1A eligibility criteria:

• Evidence of the beneficiary’s original contributions of major significance to their field.
• Evidence of the beneficiary’s authorship of scholarly articles, professional journals or major media in their field.
• Evidence of published material (written by others and related to the beneficiary’s work) about the beneficiary in professional publications, major trade publications or major media.
• Evidence establishing the beneficiary’s role as a judge of the work of others in the same or a related field.
• Evidence that organizations with a distinguished reputation in the field have employed the beneficiary in a critical or essential capacity.
• Evidence that the beneficiary has earned or will earn high compensation for their services.
• Evidence of the beneficiary’s receipt of nationally or internationally recognized prizes or awards for excellence in their field.
• Evidence of the beneficiary’s membership in associations requiring outstanding achievements in their field, as judged by recognized field experts.

Despite the heightened requirements, various beneficiaries may qualify for O-1A status. The O-1A may be a good option for researchers, professors, medical professionals, high-level technology specialists, business executives, entrepreneurs, professional athletes and several other professions. Last year, USCIS updated its Policy Manual to provide further guidance on evidence that can be used to support an O-1A petition with a focus on science, technology, engineering, and mathematics (STEM) fields, expanding the types of evidence that may be used to show extraordinary ability in these fields. Accordingly, beneficiaries who USCIS did not select in the FY2024 H-1B lottery may consider evaluating their eligibility for O-1A status as an alternative opportunity.

Summer associate Dean H. Farmer contributed to the preparation of this article.