From O1 Visa to Green Card

From O1 Visa to Green Card

The green card serves as proof that its holder, a lawful permanent resident (LPR), has been officially granted immigration benefits, which include permission to reside and take employment in the United States. The holder must maintain permanent resident status, and can be removed from the United States if certain conditions of this status are not met.

Green Card Eligibility

You may be eligible to apply for a green card (permanent residence) through your family, a job offer or employment, refugee or asylum status, or a number of other special provisions.

In some cases, you may even be able to self petition or have a record created for permanent residence on your behalf. In general, to meet the requirements for permanent residence in the United States, you must:

-Be eligible for one of the immigrant categories established in the Immigration and Nationality Act (INA)

-Have a qualifying immigrant petition filed and approved for you (with a few exceptions)

-Have an immigrant visa immediately available

-Be admissible to the United States

Eligibility for an Immigrant Category

Individuals who want to become immigrants (permanent residents) through their qualified family member, a job offer or employment, or a special category will generally be classified in categories based on a preference system.

Except for immediate relatives of a U.S. citizen who are given the highest immigration priority and a few other exceptions, Congress has set a finite number of visas that can be used each year for each category of immigrants.

Family Based

Some relatives of U.S. citizens, known as immediate relatives, do not have to wait for a visa to become available. There is no limit to the number of visas that can be utilized in this category in a particular year. Immediate relatives include:

Parents of a U.S. citizen

Spouses of a U.S. citizen

Unmarried children under the age of 21 of a U.S. citizen

Note: U.S. citizens must be at least 21 years old to apply for their parents.

The qualified relatives of a U.S. citizen or permanent resident in the remaining family-based categories may have to wait for a visa to become available before they can apply for permanent residency. These categories include:

First Preference: Unmarried, adult (21 years of age or older) sons and daughters of U.S. citizens

Second Preference A: Spouses of permanent residents and the unmarried children (under the age of 21)) of permanent residents

Second Preference B: Unmarried sons and daughters (21 years or age or older) of permanent residents

Third Preference: Married sons and daughters of U.S. citizens, their spouses and their minor children

Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their minor children

Job or Employment Based

People who want to become immigrants based on employment or a job offer may apply for permanent residence or an immigrant visa abroad, when an immigrant visa number becomes available according to the following employment based preferences:

First Preference: Priority Workers, including aliens with extraordinary abilities, outstanding professors and researchers, and certain multinational executives and managers

Second Preference: Members of professions holding an advanced degree or persons of exceptional ability (including individuals seeking a National Interest Waiver)

Third Preference: Skilled Workers, professionals and other qualified workers

Fourth Preference: Certain special immigrants including those in religious vocations

Fifth Preference: Employment creation immigrants (investors or entrepreneurs)

Based on Refugee or Asylum Status

If you were admitted to the United States as a refugee or the qualifying spouse or child of a refugee, you are required to apply for permanent residence (a green card) 1 year after your entry into the United States in this status.

If you were granted asylum in the United States or are a qualifying spouse or child of an asylee, you may apply for permanent residence 1 year after the grant of your asylum status.

If you are a refugee, you are required by law to apply for a green card 1 year after being admitted to the United States in refugee status.

If you are an asylee or asylee derivative spouse or child, you are not required to apply for a green card 1 year after being granted asylum or 1 year after being admitted to the United States in asylum status, although it may be in your best interest to do so.

Other Ways

Although most immigrants come to live permanently in the United States through a family member’s sponsorship, employment, or a job offer, there are many other ways to get a green card.

A number of special immigrant programs are limited to individuals meeting particular qualifications and/or applying during certain time frames.

Immigrant Petition

Immigrants in most categories will need an immigrant petition (Form I-130, Petition for Alien Relative, Form I-140, Immigrant Petition for Alien Worker, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, or another petition) filed on their behalf.

A petition establishes the underlying basis for your ability to immigrate and determines your immigrant classification or category. Some categories of immigrants may be able to self-petition. Most people immigrating based on humanitarian programs are exempt from the petition requirement.

Some immigrant petitions can be filed at the same time as the adjustment application (Form I-485, Application to Register Permanent Residence or Adjust Status), known as “concurrent filing” while other categories of immigrants will be required to wait until they have an approved petition before being allowed to apply for adjustment of status or an immigrant visa.

Visa Availability

A visa is always available for immediate relatives of U.S. citizens.

If you are in a family or employment based preference category, visa availability is determined by:

Your priority date

The preference category you are immigrating under

The country the visa will be charged to (usually your country of citizenship)

The Department of State is the government agency that controls visa numbers. The annual limits for visa numbers are established by Congress and can be referenced in the Immigration and Nationality Act (INA).

First, a priority date will be assigned to you based on your immigrant petition filing date (the date that the petition is properly filed with USCIS) or, in certain employment-based cases, the date the application for a labor certification was accepted by the Department of Labor. Your priority date holds your place in line for an immigrant visa.

This date, along with your country of nationality and preference category, determines if or how long a person will have to wait for a visa to be immediately available. When USCIS officials are ready to approve an applicant for permanent residency in a visa category that has limited numbers, we must first request a visa number from the Department of State.

When a visa is available, you may file Form I-485, Application to Register Permanent Residence or Adjust Status (if you are in the United States) or apply for an immigrant visa abroad (consular processing).

If you are consular processing, USCIS will forward your approved petition to the Department of State’s National Visa Center who will contact you when your priority date is about to become current as to what your next steps are and when you may apply for an immigrant visa abroad.

Admissibility to the United States

All persons applying for an immigrant visa or adjustment of status must prove to the satisfaction of immigration or consular officials that they are admissible (eligible for admission) to the United States.

There are many grounds of inadmissibility that could potentially cause someone to be ineligible to become a permanent resident. For instance, there are health-related, criminal, security-related, and other grounds USCIS must consider.

In some cases and in certain situations, if you are found inadmissible to the United States you may be eligible to file a waiver on Form I-601, Application for Waiver of Ground of Inadmissibility, (the form required for most immigrants) or I-602, Application By Refugee For Waiver of Grounds of Excludability (the form required for refugees and asylees) to excuse your inadmissibility.

The grounds of inadmissibility are determined by the particular category under which you are immigrating. If you are ultimately found inadmissible to the United States, your adjustment of status application (Form I-485) or immigrant visa application will be denied.

Congress has set the grounds of inadmissibility and they may be referenced in Section 212 of the Immigration and Nationality Act.

After all paperwork has been received, interviews conducted (if necessary), security checks completed, and other eligibility requirements reviewed, your case will be ready for a decision by USCIS


From O1 Visa to Green Card

The Visa itself will not generate a Green Card, a separate Green Card application will be necessary as the O-1 Visa is a non-immigrant visa and the Green Card (Permanent Residency) is an immigrant visa application.

The O-1 Visa is often used as a quick visa process (taking anywhere from one to four months to process) which allows a person to enter and work on projects that are already established in the relatively near future. The Green Card process on the other hand usually takes much longer, over 1 year most cases.

The O-1 Visa is often times also uses as a stepping stone to a later Green Card application as personas can further increase their standing in their field by participating in upcoming projects, events, or employment in the U.S.

Persons who utilize the O-1 Visa most often apply for a Green Card in the First Employment Based Visa Category which provides distinct advantages over other categories such as being able to apply without having to go through the arduous labor certification process required with most other employment based green card applications

Labor certification is a long procedure, also difficult, and it requires the employer to prove that there are no qualified US workers to fill the foreign national’s position. The procedure is complicated and expensive and… it doesn’t guarantee the lead to a Green Card.

These problems are minimized with an O-1 Visa. You won’t need a labor certification and the number of priority worker visas available usually exceeds the demand there are Green Card Visa number available in this category.

O-1 Visa’s dual intent and apply for U.S Green Card

The “dual intent” appears to be recognized by USCIS for O-1 extraordinary ability visa holders. While not statutorily recognized as dual intent visa like the H-1B visa and L1 visa, the O-1 visa applicants are not required to maintain a residence in the applicant’s home country.

The U.S immigration regulations provide that the approval of a permanent Labor Certification of the filing of an immigrant preference visa petition should not be a basis for denying an O-1 visa application, or the extension of stay for O-1 visa holders

However, the dual intent provision does not apply to O-1 visa applicants. Unlike the O.1 extraordinary ability nonimmigrant visa, the O-2 visa applicants must satisfy that he or she has a residence abroad, and no intent to abandon that residence in their home country.

While an O-1 visa applicant does not have to have a residence in the home country which he or she does not intent to abandon, there must however be an intent to remain on the O´1 visa. Therefore the foreign national may legally come to U.S in O-1 visa, and depart U.SS at the end of the authorized stay and at the same time seek to apply for U.S. Green Card to become a permanent resident of the United States.