How to go from O-1 visa to Green Card
Unlike most temporary US work visas, the O-1 visa offers holders a path to a Green Card. You can do this by making an application to change your status from O-1 to permanent resident, provided you meet the Green Card eligibility requirements.
Why apply for a Green Card?
The O-1 visa grants only temporary permission to work in the US.
The length of visa issued under the O-1 route is generally determined by the length of time needed for the visa holder to perform their activities with the petitioning employer, up to a maximum period of three years. To remain in the US beyond this, extensions must be applied for. Three years quickly comes around, particularly given the intensive nature of the visa extension petitioning process.
The three-year threshold can also limit the availability of career options compared to the stability of Green Card status preferred or expected by employers.
Re-entering the US with an O-1 visa is not always straightforward and you may be subject to additional questions from border officials.
A Green Card removes the requirement to undergo the extension process to renew your O-1 visa periodically. As such, becoming a permanent resident is attractive and convenient for O-1 visa holders considering a longer-term future in the US. As individuals with extraordinary skills or achievements in their professional field, it makes sense for the US to want to allow O-1 visa holders the option to become permanent residents and continue their lives and contributions to the US economy and society.
With US permanent residence, your lawful status would be indefinite and you would no longer need to apply to extend your visa. You can enjoy rights including access to education, home financing and eligibility to naturalize as a US citizen, in most cases, after 5 years. With citizenship, you attain the same rights as US nationals; you can vote and if convicted of a crime, you would not be subject to deportation.
What is ‘dual intent’?
The O-1 visa is categorised as a dual intent visa, meaning visa holders will not be penalised for pursuing an application for a Green Card while they are in the US under a nonimmigrant visa. This is an important distinction since the eligibility criteria for nonimmigrant visas generally require the individual to prove their intention to leave the US at the end of their visa term, such as retaining a residence in your home country.
This means with valid O-1 visa status, you can prove intent to stay in the US permanently while living there temporarily, and apply to change your status without detrimentally impacting your nonimmigrant status.
Green Card requirements
You will need to attain a Green Card, also known as a permanent residence card, to live and work in the United States indefinitely, without immigration restrictions.
There are a number of different routes to a Green Card, such as through employment or work. The application process and eligibility criteria depend on the type you are applying for.
The EB-1 classification is for Green Card applications from workers, comprising three subcategories:
- EB-1A: Extraordinary ability
- EB-1B: Outstanding professors and researchers
- EB-1C: Multinational manager or executive
As the name suggests, the EB1 classification for O-1 visa holders would be through the EB-1A classification.
O-1 to EB-1A
The EB-1A classification has one standard for all professions, irrespective of O-1A or O-1B status. In the same way as the O-1 visa required evidence of the applicant’s accomplishments and extraordinary ability in their professional field of either science, arts, education, business or athletics, so too must EB-1A applicants.
To be eligible under the EB-1A, you will need to show you qualify under two tests:
Preliminary ‘objective’ test
This requires you to submit evidence that you either have been awarded a one-time achievement such as an Olympic medal or Nobel prize, or that you satisfy at least three of the following demonstrating extraordinary ability in your 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
- 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
Subjective final merits determination
The Final Merits Determination assesses your status are one of the most accomplished people in your field as:
- “one of that small percentage who has risen to the very top of the field of endeavor” and
- that you have received “sustained national or international acclaim” and that your “achievements have been recognized in the field of expertise”.
Defining a field of specialism that is sufficiently narrow yet credible will be critical to formulating a compelling petition and evidencing your position at the top of that field.
In addition, EB-1A applicants also need to show their work can bring substantial benefit to the US.
Although the eligibility criteria are broadly similar for the O-1 and EB-1A visas, applicants should note that the standard of evidence for the Green Card is notably higher than for the O-1 visa; “extensive documentation” must be submitted.
Holding O-1 visa status does not guarantee an EB-1A visa will be granted. The EB-1A petition will be assessed and adjudicated on its own merit and separate to any previous successful O-1 visa petition.
As such, your Green Card application must be comprehensive and compelling to support your case. The application does demand substantial supporting documentation to be compiled and submitted to evidence your eligibility. This includes records of your achievements to demonstrate you meet the extraordinary ability standard within your field through sustained national or international acclaim and how your work is of benefit to the US. Those documents listed in the guidance are not exhaustive, and if you can provide more, so as to ‘over-evidence’ this will be preferred to ensure you are satisfying that you have extraordinary ability in your field.
Taking professional advice will help to shape your submission in line with what adjudicators are looking for.
How to go from O-1 visa to Green Card
The process involves changing visa status from a nonimmigrant to an immigrant visa category.
Your Green Card application can be made either as a self-petitioner or as a sponsored petition by your employer. EB-1 applicants are permitted to self-petition due to their standing.
To convert from an O-1 visa to the EB-1A classification, the first stage is to file form I-140 with USCIS. In the I-140, the petitioner will need to state why you (as the beneficiary) are qualified and eligible for the EB-1A Green Card.
The petition also has to include the documentary evidence that you meet the requirements (as above).
Once form I-140 is approved, your priority date becomes current. At this stage in the process, you would file form I-485 with USCIS from within the US to converting or adjusting your status from nonimmigrant (O-1) to immigrant (EB-1A).
If petitioning from within the US, you will receive separate employment and travel authorization from USCIS during adjudication.
It is also possible to file both Form I-140 and Form I-485 at the same time to save time.
Unlike the O-1 visa initial visa and extension process, you are not required to be sponsored by a qualifying US employer for the EB-1A. There is also no requirement to secure PERM Labor Certification.
However, if your employer is sponsoring your petition, they will need to show that they have exhausted all options to hire from the US domestic labor market and that you qualify for the immigrant visa. Your employer will need to 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.
If applying from overseas, you would need to process your Green Card application at a US consular office abroad, by filing form DS 260 (Immigrant Visa Electronic Application) before attending a Green Card interview at the US consulate or embassy in your country.
You will get your visa after the USCIS approves your Form I-485 or your DS 260.
O-1 visa to Green Card processing times
Generally processing times for the EB-1 application is 6 to 12 months, although factors such as USCIS case load, pandemic-related service disruption and issues with the petition can result in delays.
It is also worth checking if premium processing is available when making your application.
Adjusting status to a Green Card from the O-1 visa requires a detailed assessment of your career achievements, professional experience, employment history and prospects, and expertise in compiling extensive documentary evidence to support your application.
With specialist insight into US adjudication considerations, NNU Immigration can advise on your eligibility as an O-1 visa holder for a US Green Card, providing guidance on compiling a thorough and comprehensive petition.
As specialists in US immigration, NNU’s London-based attorneys have extensive experience in working with O-1 visa holders across all fields of specialism. Contact us for advice on your EB-1A eligibility and the petitioning process.
This article does not constitute direct legal advice and is for informational purposes only.