Why The New Wage-Based H-1B Could Face Legal Backlash: Is It The New O-1?

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The new H-1B visa rule remains one of the most important reforms amidst the crucial changes in the immigration policy under Donald Trump’s administration. Though the rule is going to be formally published and written down in the Federal Register today, much of it remains unclear and mysterious. Experts are already asking questions about whether the rule is going to supplant the old O-1 visa, and has even the potential to completely replace it.

Sounds surprising? Doesn't it? Here, our EB-1A green card consultancy explained what exactly we meant, along with a clear explanation.

H-1B visa is not for higher wages: this is a criterion for O-1

Recently, in a social media post, immigration attorney Emily Neumann argued, and rightly so, that the wage-based H-1B rule could face a myriad of legal challenges as the program was never meant to be a wage-based system. She further argued that the crux of the dispute is in this: whether the administration has the authority to prioritize higher-paid workers in a programme that, by law, does not consider wage a core criterion.

Interestingly, there is already a visa category in existence that requires a high salary as a criterion: this category is the O-1. According to Neumann, “The statute passed by Congress that created the H-1B visa made no requirement that the visas should go to high-wage individuals. There is already an O-1 visa category for people with extraordinary ability."

A confusion between H-1B and O-1 visa?

According to Neumann and several other immigration experts and lawyers, the statute by Congress that directly contributed to the origin of the H-1B visa made no requirement about the wages of the individuals. That requirement is, on the contrary, reserved for the O-1 visa.

H-1B visa only requires a bachelor’s degree or equivalent. And, by law, it should not ask for extraordinary ability or extraordinary remuneration.

On the other hand, the O-1 visa requires evidence of extraordinary ability and specialisation from the individual applicant. This visa is usually designed for those who can demonstrate extraordinary command in their respective niche or field, whether in science, education, business, arts, athletics, or other fields. Among the myriad O-1 visa criteria, the applicant also needs to show evidence of their high remuneration. This is often also similar to the EB-1A visa.

In all probability, following this very line of argument, Neumann has argued: “Now the administration is saying it has the authority to favour higher wages. That is the issue that is likely to be challenged."

Neumann brought yet another accusation aimed at the wage-based H-1B policy: “This time they followed the notice-and-comment procedure, but they finalised the rule without meaningfully engaging with the public.”

She pointed out that the proposal for wage-based selection was published on September 24 and remained open to public comment for only 60 days. Clearly, the window is too short to review all the comments adequately.

Hence, the question remains pertinent: when there is already an extraordinary ability visa, what is the point of turning the H-1B visa into another wage-based system? It almost seems redundant or seems like it is going to be yet another substitute for the O-1 visa system.

At GCEB1, we are continuously updating our audience with the latest news, analysis and developments in the international immigration landscape. Stay tuned to our blog section to get the most comprehensive analysis of the immigration issues. If you need suggestions, insights or tailored advice for the U.S. permanent residency, reach out to our EB-1A consultants directly. We wish you a smooth and stress-free immigration journey.