The O-1 Visa is available for foreign nationals who either (a) possess extraordinary ability in the sciences, education, business, or athletics or (b) who have a demonstrated record of extraordinary achievement in the motion picture or television industry or extraordinary ability in the arts (and has been recognized nationally or internationally for those achievements), and who are coming to the U.S. to work for a petitioning U.S. employer in that field. At the same time, the EB-1A classification is available to foreign nationals who wish to become a permanent resident in the U.S. and who have extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Yet, the evidentiary requirements to demonstrate “extraordinary ability” for O-1 Visa eligibility are different than the “extraordinary ability” required for EB-1A classification.
Individuals on an O-1 Visa may eventually reach a level in his or her field that gives rise for eligibility for EB-1A classification. However, qualification for the EB-1A category is reserved for the “small percentage of individuals at the very top of their fields of endeavor.” 8 CFR 204.2(h)(2). This blog post discusses ten critical things to know about converting or “upgrading” an O-1 Visa to a Green Card based on a foreign national’s eligibility under the EB-1A Category.
- Generally, there is a higher standard to obtain an O-1A Visa for individuals with an extraordinary ability in the sciences, education, business, or athletics than the standard to obtain an O-1B Visa for individuals working in the motion picture or television industry. Proving extraordinary achievement in the arts has the least stringent requirements for an O-1B Visa. However, the EB-1A classification has one standard for all professions.
- Even though the O-1 Visa is in a nonimmigrant status category, a foreign national may have quasi-“dual intent” under O-1 status. Accordingly, an approved labor certification or filed immigrant visa petition will not jeopardize the foreign national’s O-1 status or ability to extend his or her O-1 status. It is also possible to file for an O-1 Visa at the same time as filing a Form I-140. However, a foreign national on an O-1 Visa cannot file a Form I-485 Application to Register Permanent Residence or Adjust Status (“Form I-485”) or obtain advanced parole without USCIS losing the “nonimmigrant intent” to be eligible to extend the O-1 Visa or to change nonimmigrant status.
- It is wise to maintain your current O-1 Visa status throughout the adjudication of your Form I-140 by filing for an O-1 extension. If the Form I-140 is denied (and you are unable to adjust status) and the validity of your O-1 Visa has expired, you will be considered “out of status.”
- Preparing the evidence to support the foreign national’s extraordinary ability under the EB-1A classification corresponds to the evidence provided for an O-1 Visa, but there are some differences, and USCIS evaluates the evidence in a Form I-140 more strictly. The approval of an O-1 visa petition does not guarantee approval of the Form I-140.
- A foreign national may demonstrate extraordinary ability with two additional criteria to qualify for EB-1A classification that cannot be used to support an O-1A Visa:
- Evidence that your work has been displayed at artistic exhibitions or showcases, and
- Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
- However, unlike for an O-1 Visa, an EB-1A petition must demonstrate that the foreign national’s entry into the U.S. will substantially benefit the U.S. prospectively by showing that the foreign national’s extraordinary ability enhances American culture, sciences, medicine, or economy.
- The conversion from an O-1 Visa to the EB-1A classification is a 2-step process. The first step is the filing a Form I-140, Immigrant Petition for Alien Worker (“Form I-140”) with USCIS to demonstrate extraordinary ability in the field through sustained national or international acclaim. The second step, after the Form I-140 is approved and your priority date becomes current, is to either (a) remain in the U.S. and file a Form I-485 with USCIS, or (b) process your Green Card application at a U.S. consular office abroad. The majority of EB-1A applicants choose to file a Form I-485. It is also possible to concurrently file a Form I-140 and Form I-485, though issues of “immigrant intent” could impede that prospect.
- If you file a Form I-485 in the U.S., you will receive separate employment and travel authorization from USCIS during the adjudication of the Form I-485. If your Form I-485 was filed prior to the expiration of your O-1 nonimmigrant status and is denied on inadmissibility grounds, the employment and travel authorizations are terminated, and the foreign national will not be considered to be in lawful status after the expiration of the nonimmigrant status. However, a properly filed Form I-485 will stop the number of days a nonimmigrant fails to maintain status for purposes of the 180-day counting period in accordance with 8 U.S.C. § 1255(k)(2).
- Unlike the O-1 Visa, an individual with extraordinary ability may self-petition by filing a Form I-140 with USCIS (meaning there is no need for a sponsoring U.S. employer). There is no need to file for a new visa under the EB-1A category if the individual would like to change jobs. There is also no need to obtain a PERM Labor Certification, to work a certain number of hours each week, or to be paid a prevailing wage.
- Under an O-1 Visa, the foreign national’s spouse and unmarried children under the age of 21 may be eligible to apply for an O-3 nonimmigrant visa, subject to the same period of admission and limitations as the O-1 nonimmigrant, but they may not work in the U.S. However, under the EB-1A Category, the foreign national’s spouse and unmarried children under the age of 21 also obtain lawful permanent residency and have employment opportunities.
Many talented but young foreign nationals do not have the elevated level of achievement necessary to obtain EB-1A classification but may qualify for other visa options. Wolfsdorf Rosenthal LLP encourages you to update your CV or resume, with details of at least five references (three of which have not worked or collaborated with), and contact us, so we can assist you in considering your eligibility.
For more information related to the O-1 Visa for those in the Arts, be sure to REGISTER HERE for our free webinar on Thursday, May 12, 2016 at 12:30PM PDT
This post is designed to provide practical and useful information on the subject matter covered. However, it is provided with the understanding that no legal, tax, accounting, or other professional services are being rendered or provided. If legal advice or other expert assistance is required, the services of a competent professional should be sought.