Chapter 6: The Path to Permanent Residency

While an O1 visa is a non-immigrant visa, meaning it allows you to stay in the United States for a specific period of time, it is also considered dual-intent. This means that you can express your intention to stay permanently and apply for other visas that can eventually lead to obtaining a green card, also known as permanent residency.

The process of converting an O1 visa to a green card involves transitioning from a non-immigrant to an immigrant classification. This can be done through various employment-based (EB) green card categories, such as EB1, EB-2, EB-5, or family-based sponsorship.

Each employment-based green card category is classified by preference, which is determined by the immigrant's qualifications, including job skills, education, and work experience. These preference categories are crucial as they determine how quickly an immigrant can obtain a green card. The categories include:

1st Preference: The employment first preference category includes the three EB-1 subcategories. The EB-1A for individuals with extraordinary ability, the EB-1B for outstanding professors and researchers, and the EB-1C for multinational managers and executives.

2nd Preference: The employment second preference category includes the EB-2 PERM, which is one of the most common immigrant visas. It also includes the EB-2 National Interest Waiver (NIW), an often overlooked immigrant visa that can be self-petitioned.

3rd Preference: The employment third preference category includes EB-3 petitions for skilled workers and professionals.

4th Preference: There are many subgroups within the employment fourth preference category. Refer to USCIS's website for a full list.

5th Preference: The employment fifth category includes the EB-5 immigrant investment visa.

Other Workers and Certain Religious Workers: These additional categories include unskilled worker immigrant petitions and the SR visa category.

EB Visas Types

EB-1A: Persons of Extraordinary Ability

Preference Category: 1st

The EB-1 visa is widely regarded as the most difficult visa to obtain in the entire U.S. immigration system. The requirements for this visa are even more stringent than those for the O1 visa, as it necessitates providing "extensive documentation showing sustained national or international acclaim and recognition." The word 'sustained' is particularly crucial in this context.

Similar to the O1 visa, the EB-1A visa is subjective and ultimately up to the discretion of the immigration officer. However, what sets the EB-1A apart is the ability to self-petition, making it an attractive option for self-employed entrepreneurs who meet the necessary criteria.

EB-1B: Outstanding Professors and Researchers

Preference Category: 1st

Like the EB-1A, the EB-1B falls under the first preference category, but it has distinct criteria and requirements. The EB-1B requires sponsorship from a qualifying U.S. employer who seeks to hire immigrant employees that meet the criteria for outstanding professors and researchers.

To qualify, employees must fulfill three main requirements related to their background as researchers or professors. Additionally, the sponsoring employer must employ a minimum number of full-time researchers before they can sponsor an EB-1B petition.

EB-2: National Interest Waiver (NIW) and PERM

Preference Category: 2nd

There are two types of EB-2 petitions, both with similar basic requirements. The main difference between the two is that EB-2 NIW can be self-petitioned, while EB-2 PERM must be sponsored by an employer. Employers sponsoring EB-2 PERM petitions must undergo the PERM labor certification process with the U.S. Department of Labor.

The purpose of PERM is to demonstrate that the applicant will not be taking jobs away from qualified U.S. workers. Proving this can be a labor-intensive process for both the applicant and the employer. If you can skip this process, your life will be much easier.

How can you skip it? By submitting an EB-2 petition under the National Interest Waiver (NIW). The national interest waiver allows you to waive the PERM process by satisfying a three-pronged test. These three questions will help the U.S. ensure that your endeavor in the U.S. will be in the national interest.

All EB-2 applicants must have an Advanced Degree or Exceptional Ability. An Advanced Degree can include a U.S. Master's degree, the foreign equivalent of a Master's degree, a U.S. Bachelor's degree plus five years of progressive work experience, or the foreign equivalent of a U.S. Bachelor's degree plus five years of progressive work experience.

If you do not have an Advanced Degree, you can qualify for the EB-2 by satisfying three or more Exceptional Ability criteria.

The Three-Pronged Test for NIW

Prong 1: The applicant's proposed endeavor has substantial merit and national importance.

The first prong has two requirements—that the applicant's proposed endeavor has both substantial merit and national importance.

Substantial merit refers to the general importance and value of the proposed work, whereas national importance refers to the specific impact of the proposed work on the United States.

Some examples of substantial merit:

• Conducting cutting-edge research in a critical scientific field, such as cancer treatment, renewable energy, or artificial intelligence.

• Developing innovative technologies or products that address significant problems, such as climate change, cybersecurity threats, or public health crises.

Some examples of endeavours of national importance:

• Helping enhance national security, such as cybersecurity or counter-terrorism

• Research projects that would advance knowledge in a specific field

• Generating significant employment opportunities

• Improving the education system, infrastructure, or environmental sustainability

**Prong 2: ** The applicant is well-positioned to advance the proposed endeavor.

The second prong considers whether the applicant's past achievements and current resources will enable them to accomplish their proposed work.

Prong 3: On balance, it would be beneficial to the United States to waive the requirements of the PERM labor certification.

According to the Matter of Dhanasar (which introduced the three prongs of the NIW), U.S. Citizenship and Immigration Services (USCIS) considers a few different factors when assessing the third prong:

• It would be impractical for the applicant to obtain a job offer or labor certification: For example, if the applicant is an entrepreneur, it might be impractical for them to obtain a job offer or labor certification.

• Even assuming other qualified U.S. workers are available, the U.S. would still benefit from the applicant's contributions: Perhaps more qualified U.S. workers are available, but the applicant is still doing critical work.

• The applicant's work is time-sensitive: The applicant's proposed work is important and time-sensitive, but going through the PERM process would delay it.