Is O-1 an option if you are about to max out on H-1B?

O-1 used to not really come up for H-1B max-out cases.

It was only after PERM began to take two years, not six months, did people start looking into O-1.

Because PERM has become unreliable (and untenable for getting that elusive priority date through EB-2 or EB-3, especially if you tend to switch jobs every 2 years), O-1 has started to emerge as an option in addition to EB-2 NIW.

By switching to O-1 from H-1B, you can then apply for EB-2 NIW or go through a PERM process, “stop the clock” on your H-1B, and then move to back to H-1B once you get an approved NIW or PERM.

Do note that O-1 does not really put you on the path to a green card, so it’s really only something that can help you stay in the U.S. while you look for other options to get into EB-2 or EB-1A.

Also note that O-1 standards are high (not as high as EB-1A, but still high) so you may need to do some profile-building to meet the O-1 evidentiary standards.

Maxout planning can be done 2 years in advance (since PERM takes more than 2 years now, and if you are in the PERM process with only 2 years left, you should plan). O-1 is now an important part of that planning.

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