Dual Intent and O-1 Status
O-1 is a non-immigrant status category for aliens of extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics. This is an employment related status that allows qualified aliens to live and work in the United States. Significantly, under O-1 status, a foreign national can have “dual intent,” an intention which renders certain other types of non-immigrant status invalid.
“Dual intent” arises when a foreign national intends to immigrate to the US at some point, while presently maintaining non-immigrant status. Many types of legal nonimmigrant status require that the alien seeking and maintaining such classification have nonimmigrant intent, rather than immigrant intent. In other words, such aliens may not intend to remain permanently in the U.S. without jeopardizing their nonimmigrant status. However, aliens under O-1 status are not subject to this requirement. Rather, they can legally maintain “dual intent.”Thus, an approved labor certification or a filed immigrant petition will not jeopardize one's O-1 status or ability to obtain an O-1 visa. It will also not jeopardize one’s ability to request to extend their O-1 status. Further, according to the Immigration and Nationality Act, an alien under O-1 status does not have to have a foreign residence which he or she has no intention of abandoning.
Dr. Lu received her Ph.D. from a renowned European university and is now a researcher at a prestigious institute in the United States. She has made outstanding contributions to her field and become an internationally recognized expert. Dr. Lin is currently under H-1B status, but it will soon expire and she intends to apply for immigration under the EB-1A category. However, she wants to maintain stable legal status and continue working while her EB-1A is prepared and then pending. Thus, with her employer’s sponsorship, Dr. Lu applies for an O-1 visa. Under an O-1 visa, she can stay and work in the U.S. even though she is filing an immigration petition. Notably, her O-1 status will not be jeopardized even by demonstrated intent to immigrate. In fact, Dr. Lu can apply for immigration as soon as she wants to after receiving her O-1 visa because unlike holders of B, F-1 or TN status, applying for immigration even less than 60 days after arriving in the US would not represent fraudulent intent to obtain a visa or entry into the US if the alien holds O-1 status. Rather, Dr. Lu can apply for immigration while under O-1 status without any negative consequences, and she can continue working legally under her O-1 visa while she waits for approval of her EB-1A.
Dr. Wang is an exceptional Biostatistics researcher. He graduated from a prestigious university and currently lives abroad. He is applying for an O-1 visa from abroad through a US Consular Office. Additionally, his future employer has already applied for an immigration petition for Dr. Wang. Notably, even though Dr. Wang’s intent to immigrate to the US is clear, he can still apply for an O-1 visa because it allows dual intent on the part of the alien applicant. In other words, a US Consular Officer cannot deny Dr. Wang’s O-1 application based on his clear intent to immigrate, and a USCIS Officer at the US Border could not deny him entry under an O-1 visa even if he has already applied for immigration or adjustment of status.
Mr. Zhou is currently working in the US under H-1B status. His employer has already begun the Labor Certification process on Mr. Zhou’s behalf, making his intent to immigrate clear. However, now Mr. Zhou wants to change from H-1B status to O-1 status. Luckily, Mr. Zhou can apply for change of status to an O-1 visa without any risk of denial based on his demonstrated intent to immigrate, since both O-1and H-1B visas allow for dual intent on the part of alien applicants.
Please note that H-1B and L-1 visas also allow dual intent, although for a set maximum duration. Specifically, the usual duration of an H-1B worker’s stay in the U.S. is limited to six years, while an L-1A visa is initially granted for a period of one to three years, and can be extended in two-year increments until the total stay reaches seven years (see our H-1B and L-1 sections for more details). In contrast, since there is no set maximum period for O-1 status, it can theoretically be indefinite. For O-1 visas the length of the status is determined by the length of time needed for the alien to perform his duties or activities with the petitioner employer, but the period of stay may be extended indefinitely if the necessary qualifications can be met. Thus, O-1 status can present a viable way to maintain stable legal status in the U.S. and continue working, while waiting for the outcome of an immigration petition.
We have successfully helped many clients obtain their O-1 visas since our firm was founded sixteen years ago. If you are considering applying for an O-1 visa, or debating between an O-1 and H-1B visa, you can email us for advice and information at firstname.lastname@example.org. One of our experienced immigration attorneys will evaluate your case and respond to you within 24 hours.
8 C.F.R. 214.2(o) (13) “Effect of approval of a permanent labor certification or filing of a preference petition on O classification. 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.”
Founded in 1996, Zhang & Attorneys, L.P. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Attorneys, L.P., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past sixteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (email@example.com) for a free evaluation.
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