Using Your O Visa as a Stepping Stone to Your U.S. Green Card
The O visa can offer diverse options for the visa holder. O-1 visa holders and their O-3 dependents may change to another nonimmigrant visa status for which they are eligible or adjust their status to become a lawful permanent resident of the United States. In some circumstances, an O status holder will not be permitted to change status in the U.S. and must travel abroad to instead seek a new visa status through consular processing.
Obtaining Lawful Permanent Resident Status While in the U.S. on Your O Visa
Permanent resident status via a green card is generally available to an O-1 status visa holder and any of their O-3 dependents. The O-1 visa is issued to foreign nationals who have been awarded major prizes or can show extraordinary ability in the fields of arts, sciences, education, business or athletics and entertainers of extraordinary ability. This means that the qualifications for the O-1 visa category are similar to the requirements for the EB-1 Permanent Resident Petition, for Aliens of Extraordinary Ability. Therefore, O-1 visa holders are very likely eligible for permanent residency without having to file a labor certification application.
The Green Card application based on Extraordinary Ability has two main steps. First, you must demonstrate that you fulfill at least 3 out of the 10 Extraordinary Ability criteria and submit this information and documentation with your petition to USCIS to evaluate. Upon approval of your petition you are eligible to apply to Adjust to Lawful Permanent Residence. This is the actual green card application, which allows you to also apply for work and travel authorization. Your pending application provides you with “legal status” which allows you to remain legally in the U.S. while you are awaiting a decision on your green card.
How do I apply for my U.S. green card?
In general, lawful permanent residency is acquired either through entry into the U.S. on an immigrant visa granted by a U.S. consulate abroad or by adjustment of status in the U.S. through USCIS.
The O-1 status holder or O-3 dependent can choose one of these routes to obtain a U.S. green card. Applying through adjustment of status or through consular processing are very different processes and may provide different benefits and drawbacks.
Obtaining a Green Card Through USCIS Adjustment of Status in the U.S.
A noncitizen choosing to apply for adjustment of status may remain in the U.S. on their valid O visa, but is also legally allowed to stay in the country even if the visa has expired as long as the application to adjust is pending. The applicant may also apply for a work permit and/or advanced parole while their application is being processed. The adjustment of status may take up to two years. It is usually safer to extend the O visa while the application to adjust status is being processed in case of denial. If your application is denied and you no longer have a current status O visa, you would have to file an appeal, refile under a special immigration law, or depart the US. However, if you, and extended your O-1 visa, you would retain legal status to remain in the U.S. and you have not terminated your nonimmigrant status.
Every case is different and your personal circumstances will dictate the best path for you. If you need help in applying for your green card and renewing your O visa, please feel free to contact our experienced immigration and visa attorneys. [LINK TO CONTACT JCS]
Obtaining a Green Card Through Consular Processing Outside of the U.S.
Consular processing must take place in the foreign country of residence or country of birth, meaning that the O-1 visa holder would have to leave the United States until they receive their immigrant visa and can return. However, the time frame for consular processing is much quicker than adjustment of status. If an immigrant visa number is available, the processing time is on average 5 to 13 months.
What are the obstacles to obtaining my green card while I hold an O visa?
Certain factors would prevent an O-1 visa holder from obtaining a green card through an adjustment of status. Being present in the U.S. illegally, such as staying beyond your valid visa period, will make it difficult to obtain a green card. If you are subject to the J-1 two-year foreign residency requirement, that must be dealt with accordingly. In that case, the foreign residency requirement has to be fulfilled or a waiver of the requirement must be obtained. It is important to note that an approved labor certification or a filed immigrant petition will not jeopardize O-1 status or ability to obtain or renew an O-1 visa. Other factors that affect green card applications are issues involving criminal conduct, and inadmissibility based on a number of other factors. For more on general inadmissibility, please read further in our section here. [LINK TO INADMISSIBILITY STP]