The O-1 Visa program is a very common form of visa for foreign individuals who wish to work in the United States and have an extraordinary ability in a particular field. Perhaps the greatest drawback to pursuing an O-1 Visa is the fact that the O-1 Visa does not provide the visa holder with permanent residency status (I.e., does not lead to a green card). This begs the question, if an individual receives an O-1 visa, what can she doe convert from O-1 status to green card status?
In this article, we discuss the O-1 program and how the holder could pursue a green card.
How Does O-1 Visa Status Work?
As mentioned above, the O-1 visa program is open to foreign individuals with an “extraordinary ability” in a covered field. The relevant regulation defines “extraordinary” as, “demonstrating a level of expertise or distinction indicating that the person is one of a small percentage who has risen to the very top of the field of endeavor.”
Demonstrating “exceptional ability” requires the applicant to provide the United States Citizenship and Immigration Service (USCIS) with adequate support through various sources of documentation. Some of the types of documentation might include:
- Prestigious national or international prizes, such as a field medal, nobel prize, Grammy, Emmy, Tony, Etc..
- Membership in the most elite and exclusive organizations in your field.
- Scholarly publications or research output that demonstrate extraordinary accomplishment.
- Other literary publications (journals, magazines, newspapers, showing a level of achievement).
- Holding a prominent role in a prominent organization.
- Large Salary demonstrating exceptional ability.
- Being a lead performer in a recognized or renowned public work.
The relevant fields of exception ability for the visa applicant include Science, Education, Business, or Athletics, or Arts (including the motion picture or television industry). The career tracks within these fields commonly employing the O-1 include: researchers, executives, athletes, film producers or actors, musicians/composers/conductors, painters, sculptors, etc.
Seeking a Green Card as an O-1 Visa Holder
As previously discussed, a major limitation of the O-1 Visa is that it does result in a green card for the holder. It is known as a “non-immigrant” visa. Fortunately, the visa does allow the holder to pursue green card through other visa programs at the time the individual is in the United States on the O-1 visa. This feature is known as a “dual-intent” visa.
There are multiple visa green card programs that could work for the foreign employee. The most directly related to the O-1 visa holder is the EB-1 visa.
O-1 Visa to EB-1 Green Card
The EB-1 program is a green card visa program, similarly to the O-1 visa, has a category for individuals who have show exceptional achievement or ability in predefined fields. The EB-1 is broken down into:
- Individuals with Extraordinary Ability
- Outstanding Professors and Researchers
- Multi-national Manager or Executive
The requirements for substantiating an application under each of these fields is unique. While any of these may be relevant to the employee, we focus upon the requirement to demonstrate “extraordinary ability” as this is most similar to the O-1 visa. This visa is an EB-1A.
The EB1-A has a very high standard for demonstrating extraordinary ability. Generally, this standard is very similar for those receiving an O-1 Visa in the fields of science, education, business, or athletics. The standard for the EB-1A, however, is higher than the standard for receiving an O-1B visa in the fields of arts or motion picture and television. There is a single standard for all EB-1 professionals. The applicant must able to demonstrate 3 out of the 10 listed criteria below to prove extraordinary ability in her field:
- Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
- Evidence of your membership in associations in the field which demand outstanding achievement of their members
- Evidence of published material about you in professional or major trade publications or other major media
- Evidence that you have been asked to judge the work of others, either individually or on a panel
- Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
- Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
- Evidence that your work has been displayed at artistic exhibitions or showcases (NOT AVAILABLE FOR O-1 STATUS).
- Evidence of your performance of a leading or critical role in distinguished organizations
- Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
- Evidence of your commercial successes in the performing arts (NOT AVAILABLE FOR O-1 STATUS).
As you can see, there are a couple of additional methods of demonstrating extraordinary ability for EB-1 purposes that are not available for O-1 visa applicants. Another notable ability is for the EB-1 applicant to show that her presence in the US with “substantially benefit the US prospectively” by advancing American culture, sciences, medicine, or economy.
Steps to Convert the O-1 Visa to EB-1 Green Card
The first step to convert the O-1 to the EB-1 is to file Form I-140 with the USCIS. Of course, the applicant must include the required documentation to demonstrate extraordinary ability. Once the application is approved, the applicant will receive a “priority date.” The priority date is simply a fixed date for when the applicant is eligible to take the next steps in the process. The priority date is set on a first-come, first-serve basis. For visas with quotas, the priority date is very relevant. Luckily, the priority date for the EB-1 is current for all countries. The EB-1 generally takes 6-8 months to adjudicate (unless you pay $1,225 for premium processing — which cuts the processing time down to 15 days).
Some things to note that are different from the O-1 visa, the form I-140 allows the employer to petition or the foreign individual to self-petition for the EB-1 visa. In fact, the foreign applicant can petition for EB-1 status at the same time as her O-1 visa. One will not affect the other. An O-1 holder could lose her ability to extend her visa under the O-1 if she files the form I-485 to register permanent residence status. So, it is advisable to continue to file for O-1 status while the I-140 (for the EB-1) is being processed. If approved, then adjust the status to permanent resident.
Once the priority date is current, the next step is to file Form I-485 with the USCIS. This applies if the individual is already within the United States. Of course, another option is to continue processing the EB-1 application through the US consulate in the country where the applicant is located.
If you are in the United States when filing the I-485, you receive separate employment and travel authorization while the USCIS adjudicates the I-485. If the I-485 is later rejected (and the O-1 visa has expired) the authorizations for work and travel terminate. The individual must exit the country within a specified period of time.
Processing of the form I-485 generally takes about 6 months. There is no option for electing premium processing of this application.
Significant Advantages of the EB-1 Green Card
As discussed, the EB-1 green card allows an individual to self-petition. An employer is not necessarily involved in the process. This means that the EB-1 holder can change jobs without filing another I-140. Further, there is no requirement that an employer undertake a PERM Labor Certification before hiring an EB-1 holder.
Another benefit is that the EB-1 holder’s spouse and dependent children (under the age of 21) also obtain lawful permanent residence status as part of the EB-1. This is different that under the O-1 visa. The spouse and unmarried children under the age of 21 can apply for an O-3 non-immigrant visa along with the O-1 visa applicant. This subjects the O-3 visa holder to the same rules as the O-1 holder, except that they may not work in the United States. This can be very taxing for a family that must now solely depend upon the O-1 visa holder for support.
Other Immigrant Visas Available to the O-1 Visa Holder
There are several other visa programs that lead to lawful permanent residence status that an O-1 visa holder may petition. There are two additional provisions under the EB-1, subsections (B). This allows for petitions by outstanding researchers and professors. The employer must be a university that offers tenure or tenure-track positions.
The EB-2 visa is available for individuals with advanced degrees or exceptional ability in the fields of art, science, or business. The EB-2 is subject to a PERM labor certification and does not have a current priority date. There is a National Interest Waiver petition to avoid the labor certification, but it is very difficult to demonstrate that a person’s presence in the US furthers the national interest.
The EB-3 visa is available for skilled workers, professionals, and unskilled workers. The EB-3 is subject to a PERM Labor Certification and has a longer priority date. There are numerous requirements for these visas. These visas focus on demonstrating that there is demand for the employee but there are no US workers to fill the positions.
The EB-4 program applies to a laundry list of specialty workers, including:
- Religious Workers
- Special Immigrant Juveniles
- G-4 International Organization or NATO-6 Employees and Their Family Members
- International Employees of the U.S. Government Abroad
- Armed Forces Members
- Panama Canal Zone Employees
- Certain Physicians
- Afghan and Iraqi Translators
- Afghan and Iraqi Nationals Who Have Provided Faith Service in Support of U.S. Operations
Note: There are specific limitations for religious workers (particularly those who are not ministers). Each category of special worker has specific requirements for the applications. The EB-4 visa generally requires an employer to petition on behalf of the special worker. There are some special situations where the applicant can self-petition.
Lastly, the EB-5 program is known as the entrepreneur/investor visa. This visa applies to foreign applicants who are able to make the required investment into a US commercial enterprise for the purpose of founding the business or creating growth. The investor must generally have control over the business, so the investment must generally be a failing business or startup venture. The investment amount is either $500,000 in a high employment need area or $1 million in all other areas. The investment must be shown to create a minimum of 10 full-time jobs for United States workers within 2 years of the investment. Basically, the applicant must provide a full business plan and proof of investment (or the investment is nearly complete) at the time of application.
LawTrades Know Immigration Law
Navigating the array of immigration laws is a difficult undertaking. This is particularly true when changing status from a dual-intent, non-immigrant visa to a green-card granting visa program. It is not advisable to undertake the visa application process without the assistance of a legal professional. Making a mistake in this process can have significant long-term consequences. The immigration attorneys at LawTrades are experts in all matters of immigration law. We can provide you the guidance and services you need to successfully navigate this area of law.