O-1 aliens and their O-3 dependents may change to another status for which they are eligible or adjust their status, be it another non-immigrant status or permanent resident status. However, in some circumstances, an O status holder will not be permitted to change status in the U.S. and must instead seek a visa abroad for the new status through consular processing.
Change to Other Non-immigrant Status (COS)
In order for an alien to be eligible to petition for a COS in the U.S., they:
Must have been lawfully admitted into the U.S. as a non-immigrant;
Must have not committed any act that would make them ineligible to receive immigration benefits;
Must have no other factor that requires them to depart the U.S. prior to making a re-entry based on a different classification (for example, a USCIS officer may determine that they need to obtain a new visa prior to being re-admitted);
Must request a COS application before the expiration date of their I-94.
The COS application procedure depends on the non-immigrant status to which the O-1 alien wishes to change.
Obtain Permanent Resident Status
Permanent resident status is generally available to an O-1 alien and any of their O-3 dependents. As with any alien, 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 O-1 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 J-1 two-year foreign residency requirement. Please note that although an alien subject to the J-1 two-year foreign residency requirement may obtain O-1 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. Furthermore, 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.
There are important differences between consular processing and adjustment of status that may affect which route the O-1 alien seeking permanent residency status will choose. The time frame for consular processing is much quicker than adjustment of status. From the date an immigrant visa number becomes available, there is an average of 5 to 13 months processing time. Consular processing must take place in the foreign country of residence or country of birth, meaning that the O-1 alien would have to leave the United States until they receive their immigrant visa and can return. However, an alien who chooses to apply for consular processing has no benefits of a work permit and/or advanced parole while their application is processing.
On the other hand, adjustment of status on an employment-based immigrant petition can take up to two years to process. While an alien applies for adjustment of status, he or she may live in the United States at the time of filing their I-485 and can take advantage of work permits and advanced parole while waiting on their petition to be approved.
NOTE: Those on O-1 status seeking to get an I-485 petition approved should be aware that if they need to travel outside of the United States for any reason, and do not want to abandon their I-485 application, they must apply for and be granted Advanced Parole before they leave the United States. This will allow them to re-enter the country, maintain their legal status, and not lose their immigration petition.
(Updated 10/10/2012 by AG)
For more information on the O-1 visa, please click one of the following links: