1.
Applying
for Green Card for O1 alien
The U.S. permanent resident status is generally available to an O1 alien and O3
dependents of an O1 alien. Some O1 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.
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 O1 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 J1 two-year foreign residency
requirement.
Although
an alien subject to the J1 two-year foreign residency requirement may obtain O1 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 Comparison
of Criteria for O1 Visa/Status Petition and EB1-Extraordinary Ability Green Card
Petition
It
should be noted that the requirements for O1 status are similar to those for
the EB1-Extraordinary
Ability employment
based permanent residence category. The difference is that the O1 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 (EB1-EA) immigrant
classification was compared with the O1 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 O1 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.
The
O1 aliens of extraordinary ability in the fields of science,
education, business, and athletics have essentially the same definitions as
EB1-EA aliens of extraordinary ability in the fields of science, arts,
education, business, or athletics. But there are some key differences. The approval of an O1 visa petition is by no means automatic approval of a person's EB1-EA
petition:
-
The
O1 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
O1 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
O1 petition in either of these categories is not indicative of eligibility for
the EB1-EA classification.
With regard to statutory requirements, the EB1-EA 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 EB1-EA classification are
not listed for O1. 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 O1 classification has separate categories relating to the arts and motion
pictures and television, these two elements are not required for the first O1
category for science, education, business, or athletics.
Again, an individual previously approved as an O1 nonimmigrant in the fields of
science, education, business, or athletics may be successful in petitioning for
EB1-EA 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 O1 petition was approved. Each petition must stand on its own merit. It
is very important for the EB1-EA petition to clearly show a benefit to the U.S.
and demonstrate that the individual has risen to the very top of the field.
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