How to go From O1 Visa to Green Card: Step-by-Step Guide

 

The O1 visa allows highly-skilled individuals a path to live and work in the United States for extended periods of time. However, one of the main issues with the O1 visa is that it does not lead to a green card. The O1 visa is a non-immigrant visa and so it is temporary. Although there is no limit to the number of times an O1 visa can be renewed, it cannot, on its own lead to permanent residence.

 

In this guide, I will discuss multiple ways to go from O1 visa to green card. If you have any questions, please feel free to email me directly at Michael@AshooriLaw.com.

 

Overview:

 

1. Summary of O1 Visa
2. How to go from O1 visa to Green Card
3. EB1A
4. Employer Sponsorship
5. EB-2 National Interest Waiver
6. EB1B
7. EB-5 Visa for Investors
8. Family or Marriage-Based Sponsorship
9. Conclusion

 

1. Summary of O1 Visa

 

The O1 visa is a non-immigrant visa classification reserved for highly-skilled people in either the sciences, arts, business, education, athletics, or the motion picture or television industry. The O1 visa is divided into 2 separate categories: O1A and O1B. The O1A classification is reserved for professionals who have an extraordinary ability in the sciences, business, athletics, or education. The O1B classification is reserved for professionals in the arts, motion picture, or television industry. There are different requirements depending on if you are applying for an O1A or O1B visa.

 

General O1 Visa Requirements

 

To get an O1 visa, there are 6 main requirements:

 

• You must have an extraordinary ability
• Your excellence in your field must have been sustained over the years
• You must be coming to the US to work in your area of extraordinary ability
• Your O1 petition must be sponsored by a US agent or employer
• Your proposed employment in the US must qualify as an “event” as defined by the regulations
• In certain cases, you must have an advisory opinion issued by a peer group, labor organization, or management organization
• If you have any questions about these requirements, please feel free to email me directly at Michael@AshooriLaw.com or you can read my guide on the O1 visa.

 

Proving Extraordinary Ability

 

One of the key requirements for an O1 visa is proving that you have an extraordinary ability. The legal standard for what qualifies as an extraordinary ability depends on if you are applying for an O1A or an O1B visa.

 

O1A

 

For the O1A visa, to demonstrate extraordinary ability, you must show that you have such a high level of expertise that you are one of the small percentage of people who has risen to the very top of their field. You can prove this through evidence that you have received a major award (such as an Oscar or Nobel Peace Prize) or by showing that you satisfy at least 3 of the 8 evidentiary criteria for extraordinary ability (such as receipt smaller prizes/awards, publications, membership in organizations, etc.)

 

O1B

 

For the O1B visa, to demonstrate extraordinary ability, you are required to show that you have achieved “distinction.” Distinction means “a high level of achievement in the field of arts, as 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.” [8 CFR Section 214.2(o)(3)(ii)]

 

2. How to go from O1 visa to Green Card

 

The O1 visa is a non-immigrant visa classification. Non-immigrant visa classifications are temporary and do not directly lead to permanent residence in the US (a green card). In order to go from O1 visa to green card, you must convert from a non-immigrant classification to an immigrant classification.

 

There are many types of immigrant classifications. Some immigrant classifications are based on having a job offer from a US company, having an extraordinary ability, making an investment in a US company, or through marriage to a US citizen, among many others. We will explore many of these options below.

 

The Process

 

Going from an O1 visa to green card is usually a 2-step process. The first step is to get an immigrant petition approved through USCIS. For example, for many employment-based visa categories (EB1, EB2, EB3), you or your employer are required to file a Form I-140 with USCIS. For marriage and other family-based cases, your spouse or family member is required to file a Form I-130 with USCIS. Once this underlying petition is approved with USCIS, you can move to step 2. You generally have 2 options for how to proceed once the underlying petition is approved with USCIS: 1.) Do an adjustment of status; or 2.) Apply for an immigrant visa

 

Adjustment of Status

 

An adjustment of status is the process of converting (or “adjusting”) from a non-immigrant classification to immigrant. The process is done entirely in the United States by filing a Form I-485 with USCIS. The Form I-485 is also called the Application to Register Permanent Residence or Adjust Status.

 

In order to do an adjustment of status, you must be lawfully present in the US in a qualifying non-immigrant status. If you are already in the US on an O1 visa, you will most likely do an adjustment of status. This is because the adjustment can be done in the US without the need to go to a consulate or embassy abroad.

 

Important note:

 

In many cases, you can file your Form I-485 concurrently with your underlying immigrant petition (Ex. Form I-130 or Form I-140). This means that you can file your Form I-485 (adjustment of status) at the same time as filing the underlying immigrant petition. In other words, in many cases, you can perform steps 1 and 2 at the same time (instead of first waiting for the underlying immigrant petition to first be approved). In order to file concurrently, the immigrant visa classification that you are applying under must be current (meaning that there is a visa number available). This can be a little tricky, so if you have questions, feel free to email me at Michael@AshooriLaw.com.

 

Immigrant Visa Processing

 

The alternative to doing an adjustment of status is immigrant visa processing. Visa processing (also called “consular processing”) is the process of applying for an immigrant visa at a US embassy or consulate abroad. To do this, once your underlying immigrant petition is approved (and a visa number is available), you then file a Form DS-260 with the Department of State. The DS-260 is called the Immigrant Visa Electronic Application. After submitting the DS-260, you would then attend a scheduled visa interview at a US consulate or embassy abroad. Usually, the visa interview is scheduled at a consulate or embassy within your home country. Following a successful interview, an immigrant visa would be affixed to your passport.

 

O1 is a Dual-Intent Visa

 

Many non-immigrant visa classifications (such as the B1/B2 visa) require you to show non-immigrant intent. This means that, for these categories, you are required to show that you do not intend to immigrate to the US and become a permanent resident.

 

To prove non-immigrant intent, you are usually required to maintain a foreign residence and to maintain strong ties to your foreign residence.

 

Conversely, the O1 is a dual-intent visa. This means that when applying for an O1 visa, you can have the intent to eventually get your green card.

 

This is also important when planning on converting from an O1 visa to green card. For visas which require non-immigrant intent, filing an immigrant petition with USCIS can be problematic and lead to consequences when trying to renew your non-immigrant visa or extend you non-immigrant status. However, because the O1 visa is dual-intent, even if you have an approved immigrant petition, you should still be able to renew your O1 visa or extend your O1 status.

 

Now that we’ve discussed the basics of going from an O1 visa to green card, let's discuss some specific immigrant visa categories.

 

3. EB1A

 

The EB1A visa is an immigrant visa classification for people who have an extraordinary ability in either the arts, sciences, business, education, or athletics. It is very similar to the O1 visa and is commonly used as a way to convert from O1 visa to green card.

 

To qualify for an EB1A visa, you must 1.) have an extraordinary ability; 2.) be coming to the US to work in your field of extraordinary ability; and 3.) show that you will provide a substantial benefit to the United States.

 

One of the benefits of the EB1A visa is that it allows you to self-petition. What this means is that you do not need an employer to file your immigrant petition with USCIS. Instead, you can file the petition yourself, without the need of a US employer or US job offer.

 

If you need help with your EB1A visa application, or if you’d like to determine your chances for approval, please feel free to email me directly at Michael@AshooriLaw.com.

 

EB1A Requirements

 

There are 3 main requirements to get an EB1A visa. You must:

 

• Have an extraordinary ability in either the arts, sciences, athletics, business, or education
• Be coming to the US to work in your field of extraordinary ability
• Show that you will provide a substantial benefit to the US

 

Proving Extraordinary Ability for EB1A

 

For the EB1A visa, to show extraordinary ability, you must show that you have a level of expertise indicating that you are one of the small percentage of people who has risen to the very top of their field.

 

You can prove extraordinary ability for EB1A through evidence that you have received a major, internationally recognized award (like an Oscar or Nobel Peace Prize). If you don’t have one of these awards, you can show extraordinary ability by proving that you satisfy at least 3 of the evidentiary criteria for EB1A (membership in organizations, a high salary, publications, citations, etc.).

 

Comparison of O1 and EB1A

 

The requirements for the EB1A visa are very similar to the requirements for the O1 visa. This leads many people to think that because they have received an O1 visa, that they will automatically qualify for an EB1A visa. This is not necessarily the case. Although the requirements appear to be similar, USCIS has a more exacting standard for EB1A petitions than for O1 petitions. This means that even if someone is approved for an O1 visa, they still may be denied for an EB1A visa.

 

Also, the EB1A visa requires you to show that you will provide a substantial benefit to the United States. The O1 visa does not have this requirement. Another difference between the O1 visa and the EB1A visa has to do with the legal definition of “extraordinary ability.”

 

Earlier in this guide, we discussed the difference between the O1A visa and the O1B visa.

 

The standard for what qualifies as an “extraordinary ability” is lower for the O1B than it is for EB1A. To qualify as an extraordinary ability under EB1A, you must show that you have a level of expertise placing you among the small percentage of people who have risen to the very top of your field. This is roughly the same standard used for the O1A visa (sciences, athletics, education, business). However, under the O1B category (arts, motion picture industry, television industry), the standard for what qualifies as extraordinary ability is “distinction.” Distinction essentially means a high level of achievement above what is normally encountered, to the extent that the person is renowned. This standard is lower than what is required for EB1A.

 

Process of Going from O1 to EB1A

 

Although there are a number of differences between O1 and EB1A, it is a very common way to transition from an O1 visa to green card. To simplify the process, going from O1 to EB1A requires first filing a Form I-140 with USCIS and then filing a Form I-485 once the I-140 is approved. These steps can also be combined so that both forms are filed at the same time.

 

4. Employer Sponsorship

 

Another way to go from an O1 visa to green card is by having a US employer sponsor you for a  green card by offering you a full-time job. If certain conditions are met, and a US company is unable to secure a qualified US candidate for their company, a US company may be able to sponsor a foreign worker to work for their company (and get a green card).

 

In order to sponsor you for a green card, the US company will have to get an approved labor certification through the Department of Labor. A labor certification basically certifies that the US company made attempts to hire a qualified US worker but was unable to do so.

 

If you are currently on an O1 visa and are working for a US company, your US employer may be willing to sponsor you for a green card. Alternatively, you may be able to find another company willing to sponsor you.

 

Here is a quick overview of the process of getting a green card through employer sponsorship:

 

• Your prospective US employer must conduct job recruitment activities (such as posting ads and job listings).
• The employer must be unable to secure a qualified US worker for the position offered.
• The employer must offer you a full-time permanent position with the company
• The employer must pay you the prevailing wage for the position they are hiring you for (they cannot offer you less than the appropriate wage merely because they are sponsoring you for a green card).
• The employer must have the financial ability to pay you the prevailing wage
• Once the employer gets an approved labor certification, they must file a Form I-140 with USCIS under either the EB-2 or EB-3 visa categories.
• You must satisfy the requirements under either the EB-2 or EB-3 visa category.
• Once the I-140 is approved, you would then file your adjustment of status (Form I-485).

 

5. EB2 National Interest Waiver

 

Another option for converting from an O1 visa to green card is the EB2 national interest waiver. The EB2 national interest waiver is for people who work in a field that has “substantial merit and national importance.” Basically, the EB2 national interest waiver is similar to an employer sponsorship (mentioned above) except that it does not require a US employer to get an approved labor certification and file your petition on your behalf. The national interest waiver allows you to self-petition for your green card.

 

EB2 National Interest Waiver Requirements

 

• You must independently qualify for an EB2 visa as either an advanced degree professional or an individual with exceptional ability
• The field you plan to work in must have substantial merit and national importance
• You must be well-positioned to advance your field
• You must show that it is in the national interest to waive the requirement that you have a US job offer and an approved labor certification

 

6. EB1B

 

Another way to convert your O1 visa to a green card is the EB1B immigrant visa. The EB1B classification is reserved for outstanding professors and researchers. One of the benefits of an EB1B visa is that it allows a US employer to hire you without getting an approved labor certification. Instead, they can hire you just by offering you a job.

 

To qualify for an EB1B visa, you must:

 

• Be internationally recognized as being outstanding in your field
• Have at least 3 years of experience teaching and/or doing research in your field
• Have a job offer to work in a teaching position or as a researcher

 

If your O1 visa is in the education field or in the sciences, this may be a good option for you to consider. For more information on the EB1B visa, see my EB1B visa guide or you can email me directly at Michael@AshooriLaw.com with questions.

 

7. EB5 Visa for Investors

 

Another way to go from an O1 visa to green card is the EB5 investor visa. The EB5 visa is an investment-based immigrant visa. In order to qualify for an EB5 visa, you must invest at least $1,050,000 in a US business and create 10 full-time jobs for US workers. If the business that you invest in is located in an economically depressed area, called a “targeted employment area,” you may qualify to invest a reduced amount of $800,000 instead of $1,050,000.

 

To qualify for an EB5 visa you can start your own business, invest in an existing business, purchase an existing business, or invest in a regional center.

 

To apply for an EB5 visa, you must first file a Form I-526 with USCIS. Once the I-526 is approved, you can then file for an adjustment of status by filing the Form I-485. Through the EB5 process, you first become a conditional permanent resident. After 2 years of conditional permanent residence, you are eligible to have the condition removed from your green card.

 

8. Family or Marriage-Based Sponsorship

 

Another option to go from O1 visa to green card is through marriage or family relationship to a US citizen or lawful permanent resident. Entering into a legitimate marriage with a US citizen or lawful permanent resident may allow you to get a green card. Certain family relationships with US citizens and permanent residents also can confer immigration benefits (such as if your parents are US citizens). To explore these options in more detail, please email me directly at Michael@AshooriLaw.com.

 

 

9. Conclusion

 

You are now in a much better position of understanding the O1 visa and how to convert your O1 visa to a green card.

 

The O1 visa is a powerful option for highly-skilled professionals. With an O1 visa you can work in the US for year and continue to renew your visa or extend your status. However, the O1 visa is a non-immigrant visa and does not directly lead to a green card. To go from an O1 visa to green card, you must convert to an immigrant classification.

 

Some of the immigrant classifications to consider are the EB1A visa, EB2 National Interest Waiver, and sponsorship by a US company.

 

This guide covers a lot of complex information. If you have any questions about anything covered, or if you need help converting from an O1 visa to green card, feel free to email me directly at Michael@AshooriLaw.com.

 

Resources:

 

• O1 Visa Guide: What You Need to Know About the O1 Visa

 

• EB1A Visa Guide: Everything You Need to Know About the EB1A Visa

 

• EB1B Visa Guide: Everything You Need to Know About the EB1B Visa

 

• EB5 Visa Guide: Everything You Need to Know About the EB5 Visa

 

• How to Get a Green Card Through Self Petition

 

• USCIS: I-485, Application to Register Permanent Residence or Adjust Status

 

• US Department of State: DS-260 Immigrant Visa Electronic Application – Frequently Asked Questions (FAQs)

 

• Employment-Based Immigration: First Preference EB-1

 

• USCIS O1 Visa: Individuals with Extraordinary Ability or Achievement

 

• 8 CFR Section 214.2(o)(3)(ii)