Chapter 3 – O1 Visa vs. EB1 Green Card

O1 Non-Immigrant Visa vs. EB1 Immigrant Green Cards

Find out the difference between the O1 Visa and EB1 Green Card

It is important to cover the crucial distinction between a non-immigrant visa and an immigrant visa. US immigration officials are very sensitive as to how you refer to yourself when coming to America.  Many non-immigrant visas grant the holder the right to stay in the US for many years providing the holder renews their visa at the required intervals. However, no matter how long the holder stays in the US, at no time should they refer to themselves to a US immigration official as wanting to live or reside in the US on this non-immigrant visa. Section 214(b) of the INA specifically states that the holder of a non-immigrant visa holder (in most cases) can be denied entry or renewal of their visa if it can be established that the visa holder has formed the intent to permanently reside in the US.

 Only a green card grants the holder to have the intent to live permanently in the US. So if you don’t have a green card you technically can’t say that you have the intent to live or in the US. Non-immigrants can come to the US for an extended period, such as a year or more, they can take up residence in the US, they can buy or rent a home, work, pay taxes and their kids can go to school etc. That’s sounds like living in the US to me, but as far as US Immigration is concerned, they are non-resident aliens. Non-resident aliens can stay in the US as long as their visa is valid.

So if your visa allows you to stay for intervals of one year with an indefinite renewal option, as with the O1 visa, you are not a resident since your application for renewal could be denied, and your right to remain in the US would come to an end even if you had, by that time, lived in the US for 10 years.

In contrast, a permanent resident, a green card holder, has the right to reside in the US for life. However, even this right can be revoked if certain rules are broken.  This is why as immigration attorneys we try to progress a client’s immigration status from a non-immigrant visa (non-resident alien) to immigrant status (resident alien), and then ultimately to full citizenship in the shortest possible time.

Depending on the overall merits of your case it may be advantageous or strategic to make a dual application. Basically, the criteria for the O1 visa and making a green card application based on the client’s extraordinary ability are very similar. Some might argue that the threshold is slightly higher in the case of a green card application. In truth, the matter is technically argumentative, which is ‘lawyers speak’ for ‘can be argued either way’. There is an O1 visa list of criteria where the alien has to be able to identify at least three qualities and for the EB1 there is another list from which the alien must be able to satisfy three of the qualities. See below. Nevertheless, where the client’s case is very well suited for an O visa, it is possible to simultaneously apply for what is called a priority worker EB1 class green card as well. The EB1 option is only worth doing if the client ultimately wishes to become a permanent resident in the US and settle there.

 The advantages of applying for both at the same time are: –

•  The combined attorney fees are lower because much of the evidentiary work (preparing the documentary evidence of extraordinary ability) overlaps.
•  If the client were accepted for both then the client would obviously go for the green card over the O-1.
•  As an EB1 green card holder, the spouse and children (unmarried or under 21) would all get green card status also, and be able to do what ever they liked. Whereas, the O-1 does not create working opportunities for the spouse and children, they must qualify in their own right.
•  As an O-1 holder, you must have an agent or sponsor of some kind offering you work in the US, whereas the EB1 holder does not, and they can just arrive and set up on their own.

 As you can see, although the O-1 is an excellent visa, the benefits of EB1 status are that much greater.

 According to the INA Section quoted at the start of this review, the ideal O-1 candidate is a person who has received sustained national or international acclaim for their extraordinary ability in the sciences, arts, education, business or motion picture industry.

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Chapter Selection
Chapter 1  –  O1 Visas and EB1 Green Cards for Sports, Track and Field
Chapter 2  –  To Be The Best
Chapter 3  –  O1 Visa vs. EB1 Green Card
Chapter 4  –  O1 Visa Check List
Chapter 5  –  EB1 Green Card Checklist
Chapter 6  –  Acclaim, Sponsorship and Visa Duration
Chapter 7 –  O1 Visa and EB1 Green Card – Spouse and Children

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Immigration Law Offices of Chris M. Ingram

US Immigration Law Offices of Chris M. Ingram
Chris M. Ingram LL.M., ESQ – Immigration Attorney
Admitted in New York.
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