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The Comparison of Criteria for O-1 Visa
Application and EB1-Extraordinary Ability Green Card Application

1. Applying for Green Card for O-1 Visa Holder

The U.S. permanent resident status is generally available to an O-1 visa holder and O-3 dependents.
Some O-1 holders may petition for a U.S. Green Card through the EB1-Extraordinary Ability, EB1-Outstanding Researcher or Professor, or National Interest Waiver without the need for Labor Certification.

For O-1 nonimmigrant visa as aliens of extraordinary ability, the prior approval of your O-1 visa application may be a relevant consideration in USCIS adjudicating the EB1 Extraordinary Ability application, but USCIS is not bound by the fact that you were previously approved the O-1 visa. Because the eligibility as an O-1 visa does not automatically establish eligibility under the EB-1A criteria for extraordinary ability. 

USCIS will consider the O-1 visa application and the EB-1A application separate and independent, and adjudicate on its own merits, under the corresponding statutory and EB-1A regulatory provisions. Previously, USCIS provided explanation as to why the alien is not eligible for EB-1A employment-based immigrant visa, if the alien had previously been approved in an O-1 nonimmigrant visa. Therefore, the alien applicant need to meet its burden to establish eligibility for approval of the EB-1A I-140 petition. 

Also, the O-1 nonimmigrant visa includes different standards and criteria for aliens in the arts, athletics, and the motion picture industry. In such cases, there would be nothing inconsistent about finding that an alien in the arts has “distinction” according to the O-1 nonimmigrant visa criteria, but not “national or international acclaim” according to the EB-1A immigrant criteria.

As with any alien, the 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 the USCIS. The factors that would prevent an O-1 alien from obtaining an immigrant visa or adjustment of status are those factors that would apply to any alien, such as periods of being out of status or being subject to the J-1 two-year foreign residency requirement. Although an alien subject to the J-1 two-year foreign residency requirement may obtain O-1 status, such a person may not adjust status to permanent resident or get an immigrant visa until the foreign residency requirement has been fulfilled or a waiver of the requirement is obtained.

2. The "Dual Intent” for O-1 Visa Holder

O-1 is a non-immigrant visa category for aliens of extraordinary ability in the sciences, art, education, business, or athletics. This is an employment related visa that allows aliens to live and work in U.S. With an O-1 visa, an alien can have “dual intent.” The "dual intent” arises when a foreigner intends to immigrate to the United States at some time, while maintaining an non-immigrant status. Many nonimmigrant status require that an alien maintains an nonimmigrant intent.

With "dual intent”, an approved labor certification or a filed immigrant petition will not jeopardize a person's O-1 status or ability to obtain an O-1 visa. It will also not jeopardize one’s ability to extend their O-1 status. Also, an alien under O-1 status does not have to have a foreign residence which he or she has no intention of abandoning.

For example, under an O-1 visa, an alien applicant can stay and work in United States even though he is filing an immigration petition. Also, the O-1 status will not be jeopardized even by demonstrated intent to immigrate. In fact, he can apply for immigration as soon as he wants to after receiving her O-1 visa, because unlike holders of B, F-1 or TN status, applying for immigration even less than 60 days after arriving in the U.S. would not represent fraudulent intent to obtain a visa or entry into the U.S. if the alien holds O-1 status. Rather, He can apply for immigration while under O-1 status without any negative consequences, and he can continue working legally under her O-1 visa while he waits for approval of his EB-1A immigration application.

3. Applying for U.S. Green Card in the Category of EB1-Extraordinary Ability (EB-1A or EB1-EA)

The EB1 Extraordinary Ability (EB-1A) category is reserved for those at the top of their field who have a record of sustained national or international acclaim. For a person who may qualify for EB-1A, applying for this immigration category is a much better choice and quicker way to obtain U.S. Green Card than the Labor Certification. The EB-1A application does not require Labor Certification. Furthermore, an applicant can do self-application for the EB-1A application, which means that the applicant does not need a specific sponsorship from U.S. employer, or even a job offer. The only requirement is that the person must stay in the same field during the application process.

For many foreign nationals, the EB1 Extraordinary Ability is an attractive immigration category, because the immigrant visas are current for everyone in the EB1 categories, and it also allows self petition without U.S. employer's sponsorship and even a job offer. Generally, the major advantages of EB1 Extraordinary Ability application include:

1) No labor certification is required for Form I-140 filing under EB1 Aliens with Extraordinary Ability;

2) The immigrant visas are current for EB1, so it is much faster to obtain a U.S. Green Card in this category than other categories under EB2 and EB3;

3) No U.S. employer sponsorship is required, thus an alien immigrant can self-petition the EB-1A with the USCIS.

4) A job offer from the U.S. employer is NOT required for EB1 Aliens with Extraordinary Ability.

For EB1 Extraordinary Ability applicants, they need to show a major internationally recognized award, or documentation from at least three of ten criteria. But for EB1 Outstanding Professors and Researchers, the alien applicants are required to show that they have received international recognition as outstanding in an academic areas, by meeting at least two of the six criteria.

4. The Difference between O-1 Visa and EB1-Extraordinary Ability Application

The requirements for O-1 visa or status are similar to those for the EB1-Extraordinary Ability (EB1-EA), employment based permanent residence category. The difference is that the O-1 visa/status applies to those aliens seeking a non-immigrant status, while the EB1-EA standard is for those seeking permanent immigrant status. 

The O-1 visa/status is distinguished from other employment related statuses in that it applies to more types of work than other areas. For instance, H-1B status is limited to foreign professionals with at least a bachelor's degree for a specialty occupation, which cannot apply to alien artists, athletes or entertainers without such educational background. However, such as artists, athletes or entertainers can apply for O-1 visa/status. Moreover, the requirements of O-1 are much higher than that of H-1B. Also, O-1 visa/status could be obtained by those in H-1B status who have exhausted the full-authorized stay of 6 years. 

It should be noted that the requirements for O-1 status are similar to those for the EB1-Extraordinary Ability employment based permanent residence category. The difference is that the O-1 standards apply to those seeking a non-immigrant status, while the EB1-Extraordinary Ability standard is for those seeking permanent immigrant status.

According to USCIS, EB1-Extraordinary Ability (EB-1A or EB1-EA) immigrant classification was compared with the O-1 nonimmigrant classification. An individual may qualify for EB1-EA classification if she or he has extraordinary ability in the sciences, arts, education, business, or athletics. However, the O-1 classification consists of three distinct categories of individuals as follows:

a) Persons of extraordinary ability in the fields of science, education, business, or athletics.

b) Persons of extraordinary ability in the field of arts.

c) Persons of extraordinary achievement with respect to motion pictures and television.

5. The Comparison of Criteria for O-1 Visa/Status Petition and EB1-Extraordinary Ability Green Card Petition

The O-1 aliens of extraordinary ability in the fields of science, education, business, and athletics have essentially the same definitions as EB-1A aliens of extraordinary ability in the fields of science, arts, education, business, or athletics. But there are some key differences. The approval of an O-1 visa petition is by no means automatic approval of a person's EB-1A petition:

  • The O-1 extraordinary ability standard applied to the arts means distinction. Distinction is a high level of achievement in the field of arts as shown by a degree of skill and recognition substantially above that ordinarily encountered, so that the person is renowned, leading, or well known in the field of endeavor. 

  • The O-1 extraordinary-achievement standard applied to the field of motion pictures and television means a very high level of accomplishment in the industry as shown by a degree of skill and recognition substantially above that ordinarily encountered, so that the person is recognized as outstanding, notable, or leading in the field. 

As these standards are lower than for the other fields, approval of an O-1 petition in either of these categories is not indicative of eligibility for the EB-1A classification.

With regard to statutory requirements, the
EB-1A category has an additional requirement that evidence must be submitted to show that the admission of the alien will be a substantial and prospective benefit to the United States. Under the list of required evidence, two of the elements listed for EB-1A
classification are not listed for O-1. These are the two elements that pertain to the arts: 

1) evidence of the display of the alien's work in the field at artistic exhibitions or showcases; and 

2) evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. 

As the O-1 classification has separate categories relating to the arts and motion pictures and television, these two elements are not required for the first O-1 category for science, education, business, or athletics.

Again, an individual previously approved as an O-1 nonimmigrant in the fields of science, education, business, or athletics may be successful in petitioning for EB-1A classification, but the individual also will have to show substantial, prospective benefit to the U.S. An individual cannot solely rely on the argument that an O-1 petition was approved. Each petition must stand on its own merit. It is very important for the EB-1A petition to clearly show a benefit to the U.S. and demonstrate that the individual has risen to the very top of the field.

Evidence must be submitted to support a Form I-140 petition for Aliens with Extraordinary Ability. Unlike the requirement for EB1 Outstanding Professor or Researcher Petition, in which alien applicant must demonstrate that the alien is recognized internationally as outstanding in the academic field, The EB1 Extraordinary Ability applicant must have garnered "sustained national or international acclaim in the field of endeavor".

6. Having an O-1 Visa, How Could I Qualify for EB1 Extraordinary Ability Green Card?

Many people who qualify for temporary O-1 visas as persons of extraordinary ability may not automatically qualify for the U.S. Permanent Resident in the EB1-Extraordinary Ability (EB-1A) Green Card category, even though the standards are close. It is therefore important to prepare an I-140 petition for a person of extraordinary ability according to the statutory and regulatory guidelines in order to avoid a Request for Evidence:

1) Ensure that all forms are completely filled out;

2) Clearly document in a letter from the petitioner, or from the alien if it is a self petition, how the alien applicant is qualified for this eminent category - EB1-Extraordinary Ability;

3) Ensure that the alien applicant meets at least three of the required criteria. Although meeting three of the ten criteria of EB-1A would not guarantee that the alien will qualify as an individual of extraordinary ability in the arts, sciences, education, business or athletics, if the alien applicant can not satisfy at least three of the EB-1A criteria, it may be wise to consider another green card application category.

The USCIS' Two-Part Evaluation approach adjudication method applies to EB1 Extraordinary Ability petition. The evidence listed in the EB-1A regulations serve only as guidelines for the petitioner. Eventually, the submitted evidence should establish that the alien beneficiary is nationally and internationally recognized as extraordinary, and have received "sustained national or international acclaim in the field of endeavor".

Simply presenting evidence which relates to three of the listed ten EB-1A criteria does not necessarily mean that the immigrant visa application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence. If the USCIS adjudicator determines that the evidence does not meet the standard for EB-1A classification, the additional evidence may be requested (Request For Evidence, or RFE)

7. Not Qualify for EB1 Alien of Extraordinary Ability? EB1 Outstanding Researcher/Professor or EB2 National Interest Waiver May Be Your Options

As a O-1 visa holder, if you believe that you may not qualify for EB1 Alien of Extraordinary Ability (EB-1A), but you still want to file your immigrant visa application under the EB1 or EB2, you may consider the EB1 Outstanding Researcher or Professor (EB-1B), or consider the EB2 National Interest Waiver (NIW).

For many foreign nationals, the EB1 Extraordinary Ability is an attractive immigration category, because the immigrant visas are current for everyone in the EB1 categories, and it also allows self petition without U.S. employer's sponsorship and even job offer. However, the EB1 Extraordinary Ability category has the higher standard which requires the alien applicants to "rise to the very top of the field."

For many alien applicants, and also for people whose academic achievements are not quite sufficient for EB-1A applications, the EB1 Outstanding Professor or Researcher immigration category and EB2 National Interest Waiver category are good choices. The regulation standards for EB-1B and NIW applications are somewhat lower than that of EB-1A, and it only requires the "internationally recognized as outstanding" for EB-1B and "exceptional ability" for NIW, rather than "at the very top of the field of endeavor" as required by EB-1A applications. The overall approval rate of EB-1B applications and NIW applications are higher than that of EB-1A applications.

8. Another Option for O-1 Visa Holder - Petition of EB1 Extraordinary Ability and EB2 National Interest Waiver at the Same Time

The EB2 National Interest Waiver petition is another option for O-1 visa holder to apply for U.S. Green Card. The requirements for EB1 Extraordinary Ability and EB2 National Interest Waiver petition (NIW) are different. Therefore, the application documents and their preparation are significantly different between these two immigrant visa categories. But for both EB-1A and NIW petitions, the alien applicant can file self-petition without the need of an U.S. employer as a sponsor. 

There is no rules in the law to prohibits multiple filings of immigrant visa application. It is possible to file an EB-1A and a NIW petition at the same time, or file an EB-1A and an EB-1B petition at the same time. Many aliens file two Form I-140 petitions concurrently in EB-1A and NIW (or EB-1A and EB-1B) to increase their approval chances.

To file EB1-A and NIW concurrently, you can file them by yourself, or you can ask your employer as your sponsor, to file a separate Form I-140 petition for EB-1A and NIW, with the required application fee and supporting documents for each immigrant visa category. Also, the applicant should be careful not to check multiple categories on one I-140 Form.

 

 


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