The Big Step: Moving from O-1 to a Green Card
Transitioning to a Green Card is the right move for many people on O-1 Visas. However, whether the best route to a Green Card for you is via EB1-1, EB-2, NIW, EB-3 or even through your family, Green Card status—being a “lawful permanent resident”-- offers important benefits.
For many people, Green Card status is most meaningful because it represents liberation from the visa application and renewal process—the malady known as “O-1 Visa Burn-out.” Despite the huge benefit the United States derives from O-1 Visa Beneficiaries, the O-1 Visa can—after several terms in O-1—become burdensome as a long-term prospect. Many clients tell us that the 3-year O-1 Visa term goes quickly. The elation of that first approval is replaced soon enough by a sense of constant dread. Renewals impinge on your life, your funds, and your career, while making travel complicated. Many clients feel insecure at their core, having to renew every 3 years, and, especially in these times, wonder what the future holds for them in the U.S.
In some cases, the O-1 Visa presents concrete career limitations which a Green Card would remove. For example, actors may be barred from great roles because casting directors want to see a Green Card. The burdensome mechanics of international travel on an O-1 Visa can also be the reason to move to a Green Card. For citizens of countries like Brazil, China, and Mexico, which have limiting Reciprocity Agreements with the U.S., the process is often unbearably frustrating and time-consuming. For these reasons, many clients who have been approved for an O-1 ask about the viability and timing of a Green Card application.
Green Card status means more than just freedom from O-1 renewals every three years: it means you are entitled to most of the benefits and rights of US Citizens, except for the right to vote and serve on juries. These benefits relate to many aspects of life in the United States such as education, home financing, and employment. Green Card holders are normally eligible for Citizenship in the United States after about five years. Citizenship means you have all of the rights of US citizens who were born in the US. You can vote, and if you are arrested and convicted of a crime, you are not subject to deportation. You don’t ever need to worry about renewing your visa or Green Card, once you are a citizen.
What is the best way to get a Green Card? There are several different routes to a Green Card—and which is best for you depends entirely on your career achievements, your employment picture, and your family connections within the United States. The selection of the best approach for you is a detailed decision that should be made with the assistance of an attorney truly experienced in this precise area, who is able to take the time to understand your situation, your record of accomplishments, and your employment prospects. While there are numerous options, each of which should be considered, many people who have O-1 Visas, in the fields of design and the arts, find that their best approach is the EB1-1 Green Card, known as the “Alien of Extraordinary Ability.”
The EB1-1 Petition is one of the few Green Card routes that does not require a Petitioner/Sponsor. It does require, however, the submission of a detailed evidentiary record of your achievements in your field and evidence that your work will be a benefit to the United States in the future.
When is the best time to step up to a Green Card? In the context of an EB1-1 Petition, an important consideration relates to the maturity of your career. We encourage clients to transition to a Green Card when their career is at its peak. The Adjudicators of the USCIS are always interested in how you will contribute to your field and to the United States in the future, so it is important to strike when your record is its most compelling. This means two things:
First, you want to apply with a full arsenal of impressive achievements and recognition. The discussion below explains the major eligibility requirements applicable to an EB1-1 Alien of Extraordinary Ability Green Card filing.
But, don’t wait too long. If you have had a great success, it may a good time to make the switch to a Green Card while your press and awards are still fresh and when the issues that your work addresses are still meaningful. The Adjudicators of the USCIS are not likely to approve a Green Card for an artist whose career is in decline, or even over.
Key FAQs on EB 1-1 Green Cards:
Does an O-1 approval guarantee an EB 1-1 approval? No. Having an O-1 is not a Green Card Guarantee.
If a person has had an O-1 for several terms, will their Green Card be approved? No amount of O-1s will guarantee Green Card approval. However, a lengthy term in O-1 often indicates a significant career and achievements—which is the key.
Is it necessary to have an O-1 approval to apply for an EB1-1? An O-1 visa is not a technical prerequisite for an EB1-1 approval. In terms of tactics – and the appearance of a case to a USCIS officer, an O-1 is a good foundation for an EB1-1.
If a person has lived in the US for over ten years, and paid taxes during that time, is a Green Card guaranteed? No. The US Green Card system does not work this way.
So, what are the issues which decide whether a Green Card will be approved? Approval of an EB1-1 Green Card is based on meeting two different multi-faceted tests, a preliminary objective test and a subjective final merits determination. They both must be met with carefully presented evidence, in a format that can be understood by an Adjudicating Officer:
1. The Objective Test: First, a Petition must show satisfaction of at least three of the following criteria, many of which are similar to the criteria for an O-1 (paraphrased from the regulations):
Nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
Membership in highly selective associations in the field;
Published material about the alien in professional or major trade publications or other major media;
Judging the work of others in the same or an allied field;
Original contributions of major significance in the field;
Authorship of scholarly articles in the field;
Display of work at artistic exhibitions or showcases;
Evidence of performance of a leading or critical role for organizations or establishments that have a distinguished reputation;
High salary or compensation for the field;
Commercial successes in the performing arts.
If your Petition presents evidence meeting at least three of the above criteria, you move on to the “Final Merits Determination”, a challenging test designed to find out if you are among the most accomplished people in your field. Even after meeting at least three of the criteria above, we must show, in order to be successful in EB1-1, that you are:
(i)"one of that small percentage who has risen to the very top of the field of endeavor" and
(ii) that you have received “sustained national or international acclaim” and that your “achievements have been recognized in the field of expertise”.
Finally, it is always important to be able to point out that your presence in the United States will be a prospective benefit to this country.
The criteria applicable to the EB1-1 are certainly daunting on paper—but if viewed as a framework for presenting an artist’s work and the significant recognition they have received, these criteria start to seem like a “how-to” book, rather than a set of tasks, impossible to meet. While many O-1 holders may not see how their work will fit in to these criteria, an experienced attorney – one who knows the EB1-1 process and is familiar with work in your field--may have a different perspective, and see that the criteria are met. For many O-1 visa holders, who have been in O-1 for some time, a transition to EB1-1 may be more possible than you think.
We invite you to contact us to discuss these issues.
Photo by Clem Onojeghuo courtesy of Unsplash