How to transition from an O-1 visa to a green card
Transitioning from an O-1 nonimmigrant visa category to the EB-1 Green card visa category is usually for individuals who have extraordinary skills or achievements in their respective fields. Learn more below.
A green card, officially known as a Permanent Resident Card, is the main document one needs in order to live and work permanently in the United States. There are multiple ways to get one, and each one has a process that largely depends on the specific case.
Transitioning from an O-1 non-immigrant visa category to the EB-1 Green card visa category is usually for individuals who have extraordinary skills or achievements in their respective fields. This article explains the process of getting a green card with an O-1 visa.
The O-1 visa category
O-1 is an employment-based, non-immigrant visa category, which means it gives individuals legal permission to work in the U.S. but only for a temporary period. This timeframe has an initial maximum cap of three years, which the USCIS may extend by increments of one year as they deem necessary. But generally, O-1 length of validity depends on how long it will take to accomplish the beneficiary's events or projects.
The main advantage of the O-1 visa when it comes to acquiring a green card is its "dual intent" nature. This means your application for an immigrant visa does not in any way affect your O-1 status or the eligibility to extend it negatively. In the case of other visa categories, the USCIS flags and denies applicants if they show any intent to live in the USA after acquiring their temporary visa.
Proving you have no plan to stay permanently in the U.S. is usually done by showing you have a stable residence in your home country that you have no intention of leaving. With an O-1 visa, you can prove your intent to stay in the U.S. permanently while living there temporarily. You can even apply for a green card while applying for an O-1 visa.
O-1 visa eligibility
While some employment visas require only minimum skill levels (e.g. college degree), the main criteria in getting an O-1 visa are extraordinary skills and achievements. There are two main types of extraordinary individuals under the O-1 visa.
O-1A visa requires individuals to have a proven record of extraordinary ability in the fields of science, education, business or athletics.
O-1B visa is for individuals who have shown extraordinary ability in the field of arts or extraordinary achievements in the motion picture or television industries.
USCIS has specifications on what it means to have extraordinary abilities:
For the fields of science, education, business or athletics, extraordinary ability means “a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavour.”
In the field of arts, extraordinary ability means “distinction,” which means “a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.”
Lastly, individuals of the motion picture or television industry must “demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.”
These abilities and achievements must have evidence, such as a Nobel Prize or a Grammy Award. Otherwise, the U.S. Citizenship and Immigration Services (USCIS) also provides a long list of criteria, three of which must be satisfied by the O-1 aspirant. Some include nationally or internationally recognized achievements in the respective field, a high salary from working in the respective field, and significant recognition from prominent experts and organizations in the respective field.
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O-1 visa application process
The petitioner should file Form I-129 (Petition for Non-immigrant Worker) with the USCIS office listed on the form instructions. The petition may not be filed more than one year before the actual need for the non-immigrant's services. To avoid delays, the Form I-129 should be submitted at least 45 days before the date of employment.
The O-1 beneficiary's employer must file Form I-129. This document is what employers use on behalf of a non-immigrant worker to reason out why they are qualified to perform services or receive training in the U.S. temporarily.
Other requirements of the O-1 visa are documentary evidence in the form of peer consultations, employment contract and itineraries of activities. Click here to learn more on applying for an O-1 visa.
The EB-1A visa category
The EB-1A is a type of EB-1 visa, which has three subcategories:
Extraordinary ability or EB-1A
Outstanding professors and researchers or EB-1B
Multinational manager or executive or EB-1C
There are many visa options to choose from when acquiring a green card as an O-1 visa holder. But the EB-1A immigrant visa is a common and ideal green card option for O-1 holders because both passes are employment-based categories that cater to individuals with extraordinary abilities.
Moreover, the EB-1 visa is a first preference visa, which means the USCIS gives priority to EB-1 applicants when distributing the limited number of employment-based visas each year. Taking the EB-1A visa route is an advantageous move for O-1 visa holders.
EB-1A visa eligibility
Similar to the O-1 visa, the EB-1A category requires applicants to exhibit extraordinary ability in the fields of science, arts, education, business or athletics. To do so, they must satisfy a list of evidentiary criteria. They can either present a one-time achievement (e.g. Pulitzer Prize, Oscar, Nobel Prize or an Olympic medal) or fulfill at least three of the following attributes:
Has received a nationally or internationally recognized prizes or awards for excellence
Is a member of associations in the field which demand outstanding achievement of their members
Has been featured in published material in professional or major trade publications or other major media
Has been a judge of the work of others, either individually or on a panel
Has contributed original scientific, scholarly, artistic, athletic or business-related works of major significance to the field
Has authored scholarly articles in professional or major trade publications or other major media
Has work that has been displayed at artistic exhibitions or showcases
Has performed a leading or critical role in distinguished organizations
Has command of a high salary or other significantly high remuneration relative to others in the field
Has commercial successes in the performing arts
As with the O-1 visa, all these credentials must have evidence. However, the main difference between the eligibility requirements of the two is that USCIS holds stricter standards for EB-1A applications.
For one, USCIS requires that all these achievements must have "extensive documentation." The O-1 visa "distinction" criteria for arts is also at a lesser standard compared to the EB-1. The criteria list for EB-1A has two items not included in the O-1 criteria list. These two items, numbers 7 and 10, are both additional criteria in the field of arts.
Lastly, the EB-1 visa requires applicants to show that they can provide substantial benefit to the U.S. through their specialized, extraordinary work. The O-1 visa does not require this attribute.
Transitioning from O-1 to EB-1A
No matter how similar the two visas are, there is still no guarantee that an O-1 visa holder will qualify for an EB-1 visa category. Qualifying for an O-1 visa might help your case in obtaining an EB-1 visa, but USCIS considers an O-1 application and an EB-1 application separate and independent of each other. USCIS will analyze your EB-1 petition on its own merits despite priorly approving your O-1 application.
EB-1A visa application process
Petition
Like most visas, the first step in obtaining an EB-1A visa is to file Form I-140 (Immigration Petition for Alien Worker). The petitioner must clearly state the reasons why the beneficiary is qualified to receive the EB-1 visa.
The petitioner must file the petition alongside the documents that provide evidence for satisfying at least three of the eligibility requirements stated above. Take note that merely providing documentation of these achievements does not guarantee approval. USCIS will still have to examine the documents. The list is just a guideline for petitioners. Still, the bottom line for the USCIS is that the beneficiary must demonstrate extraordinary ability in his or field through “sustained national or international acclaim.”
There are two ways to file EB-1A requirements:
Employer petition. If you are currently working in the U.S. with an O-1 visa, your U.S. employer may sponsor you in getting a green card. Since you are a foreigner aspiring to transfer to the U.S. permanently, your U.S. employer must prove that they have done what they can to find a qualified U.S. worker to no avail, which is why you're the best option for the job and is deserving of the immigrant visa. In this case, the company will need to acquire an approved labor certification from the Department of Labor. This document certifies that the company was not able to secure a U.S. worker for the job.
Self-petition. One of the main advantages of the EB-1A visa is self-petition, or the freedom of the aspiring visa holder to file a petition without the help of a U.S. employer. USCIS allows EB-1 applicants to petition without a sponsor because of the prestige and difficulty of acquiring the visa. Choosing to self-petition for an EB-1A visa as an O-1 visa holder means that you already have a job and that you are only aiming to change your visa status from nonimmigrant (temporary) to immigrant (permanent).
By extension, an EB-1A visa allows immigrants to change their employers anytime and as often as they want. In contrast, the O-1 visa will only enable nonimmigrants to change employers if their new employer would file a new O-1 visa petition for them.
Change status from nonimmigrant to immigrant
If USCIS approves your Form I-140, the next step is to file Form I-485 (Application to Register Permanent Residence or Adjust Status). This process means that you are converting or adjusting your status from nonimmigrant (O-1) to immigrant (EB-1A).
In the adjustment of status, you are required to be legally present in the U.S., which means you must already have a valid nonimmigrant status. So as an O-1 visa holder, you are most likely to make an adjustment of status and finish the process in the U.S.
On the other hand, if you are currently away from the U.S., you will need to undergo immigrant visa processing or consular processing. This option means you must apply for the conversion of your status at a U.S. embassy or consulate in another country.
In this case, you will need to submit DS 260 (Immigrant Visa Electronic Application), with the Department of State. Next, you will need to attend a scheduled interview at the U.S. consulate or embassy in your country.
You will get your visa after the USCIS approves your Form I-485 or your DS 260.
EB-1A processing time
The typical processing time for the EB-1 application is six to eight months and can sometimes reach a year. The duration largely depends on the applicant's ability to follow the process, USCIS’ workload and whether or not the applicant avails of premium processing, which speeds up the process.
Note that applicants can file Form I-140 and Form I-485 at the same time. File them together simultaneously to save time. It is also advisable to file for the EB-1 while your O-1 is still valid. Otherwise, you may face more legal problems when you are "out of status" according to the USCIS.
Other visa options
If your EB-1A application is not approved, there are other green card options you can take:
EB-1B (Outstanding professors and researchers)
This option is the second subcategory of the EB-1 visa. This category requires applicants to demonstrate international recognition of outstanding achievements in a particular academic field.
Applicants must also have at least three years of teaching and research experience in their academic field and are planning to pursue tenure in the United States. Finally, EB-1B applicants must satisfy at least two of the criteria list by the USCIS.
EB-1C (Multinational manager or executives)
The third subcategory of the EB-1 visa requires that applicants have worked in a managerial or executive position for at least one year for a U.S. company while they are in another country. This employment must have occurred within three years before the date of the visa petition. The beneficiary must also be entering the U.S. to continue working for the firm.
Both EB-1B and EB-1C visa require a sponsor company.
EB-2 (National Interest Waiver)
The EB-2 visa option is for individuals whose services provide a “substantial merit and national importance” to the United States, hence the term “national interest.” This option does not require a U.S. sponsor and thus allows self-petition.
To qualify for the EB-2 national interest visa, you must have either an advanced professional degree or exceptional ability in your field. Your field must have substantial merit and national importance to the U.S.., and you must be well-positioned to advance in your field. Click here for more information on the EB-2 visa.
The takeaway
An O-1 visa is an advantageous option in acquiring a green card because of its nature. It is a dual intent visa that has similar requirements to immigrant visas that have a high priority in the USCIS. Make sure to seek the aid of immigration lawyers in applying for a green card visa.
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The ultimate guide to the O-1 visa
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