Urgent: Status of O1 visa holder after filing 485

[chatterjee1]

Needed some guidance from the O 1 visa holders here. Once you file I 485 for AOS, are the rules for O1 different from H1. I have heard unlike H1 visa holders, who have a choice to use EAD or remain on H1, O1 visa holders have to go on to EAD and therefore can travel out of US only using AP. I have to travel a lot( atleast 3-5 times a year) on work and cannot avoid that. Would that pose a problem? Is there anyway O1 visa holders continue to remain on O1 without exercising their EAD during AOS ( like H1/L1 visa holders since O1 is also dual intent) and thus travel in and out of US using their stamped visa. Thanks a lot and any guidance will be very appreciated.

 

[tipotodo]

Needed some guidance from the O 1 visa holders here. Once you file I 485 for AOS, are the rules for O1 different from H1. I have heard unlike H1 visa holders, who have a choice to use EAD or remain on H1, O1 visa holders have to go on to EAD and therefore can travel out of US only using AP. I have to travel a lot( atleast 3-5 times a year) on work and cannot avoid that. Would that pose a problem? Is there anyway O1 visa holders continue to remain on O1 without exercising their EAD during AOS ( like H1/L1 visa holders since O1 is also dual intent) and thus travel in and out of US using their stamped visa. Thanks a lot and any guidance will be very appreciated.

Hi, I also have a 0-1 visa, i v had it for 6 years. I am currently doing my green card stuff and no you can't travel that much unless u proccess your 485 in a consulate, thats why they have AP, but you can't use 5 times a year.

 

[chatterjee1]

Thanks Tiptodo. I was talking to my attorney and he was saying that I could travel on business during AOS using AP. I shd apply for multiple entry AP which is valid for 1 year. Any thoughts, folks?

 

[tipotodo]

Thanks Tiptodo. I was talking to my attorney and he was saying that I could travel on business during AOS using AP. I shd apply for multiple entry AP which is valid for 1 year. Any thoughts, folks?

Yeah I am in the same boat, I am waiting on my i-140 eb-1ea approval and as soon as i get it am filling i-485 and AP because I have to work alot in europe this year and I need to travel..so will see, first thigns first I need to getmy 140 approved!! But yeah applying for multilpe entry AP is the way to go!

 

[chatterjee1]

Thanks again, Tipotodo. I hope your 140 gets approved soon. I have another quick q for u as we are in the same boat( o1 and EB1). For o1 visa holder, after applying for 485, the person has to exercise EAD right? This is unlike H1B who can keep his H1 status or exercise EAD.... Your thoughts on this, pls. I am very confused on this right now. When both visas are dual intent, why so many different nuances for both, I wonder!!!!

 

[tipotodo]

Thanks again, Tipotodo. I hope your 140 gets approved soon. I have another quick q for u as we are in the same boat( o1 and EB1). For o1 visa holder, after applying for 485, the person has to exercise EAD right? This is unlike H1B who can keep his H1 status or exercise EAD.... Your thoughts on this, pls. I am very confused on this right now. When both visas are dual intent, why so many different nuances for both, I wonder!!!!

to be honest, i dont know, i need to ask my attorney. As far as i Know i think we need to switch to EAD because if u file the 1-485 you status is changing so the O-1 becomes nule, thats why we need the AP to travel. I know is very confusing.

But I am very positive once you file the 485 our O-1 is done. Specially cause if you go out and come back you 1-94 is a new one and the one you filled with the 1-485 is old and becomes a problem and all that crazy stuff..that why our best option if WE HAVE to travel is to get AP, thats the way to go.

 

[chatterjee1]

Thanks Tipotodo. I will have a discussion with my attorney on this and keep u posted. All the best on your 140. I read on some other thread you are all set with your RFE reply. The current retrogession in most categories has seen a huge jump in EB1 filing. So, wonder what the gameplan of USCIS is, at this point? Good Luck, once gain.

 

[tipotodo]

Thanks Tipotodo. I will have a discussion with my attorney on this and keep u posted. All the best on your 140. I read on some other thread you are all set with your RFE reply. The current retrogession in most categories has seen a huge jump in EB1 filing. So, wonder what the gameplan of USCIS is, at this point? Good Luck, once gain.

Thanx, and i know eveyrone in ther crazy minds are filling fro EB-1EA which is making USCIS crazy and defensive...mmmm

clock is ticking!

 

[civ2ru]

Thanks again, Tipotodo. I hope your 140 gets approved soon. I have another quick q for u as we are in the same boat( o1 and EB1). For o1 visa holder, after applying for 485, the person has to exercise EAD right? This is unlike H1B who can keep his H1 status or exercise EAD.... Your thoughts on this, pls. I am very confused on this right now. When both visas are dual intent, why so many different nuances for both, I wonder!!!!

Chatterjee1 - I was on P1 before AOS, but my understanding of O1 terms has always been that it is most definitely a "dual intent" visa. So you would not be violating your visa terms by filing I-485. Which means, if you have maintained your O1 status and should something go wrong with you AOS, you should be able to fall right back on O1. Entering the U.S. on O1 visa (if it's still valid) should be Okay, however I'm not 100% sure whether you can get a new O1 visa in a consulate if the old one has expired, since they do ask in the form whether you have applied for permanent residence before... Which is why it would be safer to have an AP on you.

I can't find 8 CFR § 214.2(o)(13) text to support my point of view (the new uscis.gov site is so inefficient), but here's an exerpt from http://www.americanlaw.com/dintent.html that talks in detail about dual intent doctrine:

"The doctrine of dual intent appears to be recognized for O-1 aliens, at least under the INS regulations. According to 8 CFR §214.2(o)(13), the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States. This recognition does not apply to O-2 support personnel. The definition of the O-1 category at INA §101(a)(15)(O)(i) does not require the alien to have a foreign residence which he or she has no intention of abandoning."

I am not a lawyer obviously, but in such a crucial question, as whether your O1 status is still valid after filing I-485, you would be wise to get a professional opinion, as it can alleviate a lot of potentially unnecessary worries... Good luck to you!

 

[sh302]

I have spoken to my lawyers and was told that if I want to get the process completed without going to the consulate in the home country then I need to get AP. Once I get the AP, the O-1 is no longer "valid". In any case my O-1 needs renewal in a few months and I am hoping that I get the AP paers prior to that as I do travel a lot. I am filing next week with the NIW and approved I-140. Any idea how long it will take to get the GC?

 

[tipotodo]

I have spoken to my lawyers and was told that if I want to get the process completed without going to the consulate in the home country then I need to get AP. Once I get the AP, the O-1 is no longer "valid". In any case my O-1 needs renewal in a few months and I am hoping that I get the AP paers prior to that as I do travel a lot. I am filing next week with the NIW and approved I-140. Any idea how long it will take to get the GC?

Which service center are you using, Texas or Nebraska?

Also how many times can you travel with the AP?

 

[sh302]

Which service center are you using, Texas or Nebraska?

Also how many times can you travel with the AP?

I think my I-485 will be sent to Vermont and the AP to Nebraska. I am told that there are no restrictions to the number of travels -- I am applying for a multiple trip AP.

 

[chatterjee1]

Thanks to all who have answered to my post.