Key Differences between EB-1-1 Immigrant Petitions and O-1 Nonimmigrant Petitions

by Jessica Jang

Jessica, a third year law student at Fordham University School of Law, is our fall associate. She is currently the Senior Notes Editor for the Fordham Journal of Corporate and Financial Law and a student attorney at the Immigrant Rights Clinic.

We regularly work with “extraordinary” individuals. And we don’t just mean “extraordinary” in the normal sense of the word—rare, phenomenal, and special—but also the type of “extraordinary” that fits US Citizenship & Immigration Service’s (USCIS) legal standard. That’s right, we’re talking about the O-1 nonimmigrant visa classification for individuals with “extraordinary” ability or achievement and the EB-1-1 immigrant visa classification for individuals who demonstrate “extraordinary” ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim.

Since both the O-1 and the EB-1-1 include “extraordinary” in their requirements, it’s not surprising that those who hold the O-1 often ask: “Am I also eligible for an EB-1-1 Green Card, if I’ve been approved for an O-1? Have I not proved my extraordinary ability already?" At first glance there are many similarities between the two, especially considering the standard of “extraordinary” is used for both. A closer look reveals some important differences, which should help clarify why not every O-1 applicant is ready for—or may even want—an EB-1-1. 

The EB-1-1 Is an Immigrant Visa and O-1 is a Nonimmigrant Visa

Many individuals don’t consider the implications of this. Nonimmigrant visas allow only a temporary stay in the US. Thus, the O-1 assumes that beneficiaries traveling to the US will only work temporarily in the US and will return to their home countries when they have completed their work. O-1s are granted for the duration of the event on which the person will work, up to a maximum of three years, with an allowance to apply for one-year extensions. While there is no limit on the number of O-1 extensions foreign nationals may receive, the O-1 is meant to be a temporary work visa. There is no requirement that foreign nationals physically reside in the US even while their O-1 is valid. They may simply enter the US, complete their work, and leave.  Of course, if they wish to remain here for the duration of their visa petition, they certainly may.

In contrast, the EB-1-1 immigrant visa petition leads to permanent residency in the US which lasts for as long as foreign nationals maintain their residency in the US or until they choose to become US citizens. Specifically, approval of the EB-1-1 immigrant visa allows an applicant to file a Green Card application. Recipients of employment-based Green Cards can apply for citizenship after five years of continuously residing in the US and after meeting certain other requirements. Prospective Green Card applicants should note that with permanent residency comes many rights and responsibilities and they should carefully consider all the obligations, including the tax consequences and physical presence requirements, before embarking on a Green Card application.

The EB-1-1 Immigrant Petition Has a Higher Standard of "Extraordinary"

Since the EB-1-1 leads to permanent residency and the O-1 is for a temporary stay, it follows that USCIS scrutinizes the EB-1-1 application more closely. The O-1 is for individuals of extraordinary ability. The O-1A is for individuals of extraordinary ability in the fields of science, education, business, or athletics and requires a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor.

The O-1B is for individuals of extraordinary ability in the arts and requires that the person have achieved a standard of distinction. Distinction means a high level of achievement in the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the prominent person is renowned, leading, or well known in the field of arts. For those in film and TV, “extraordinary achievement” is defined as a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field. 

The EB-1-1's “extraordinary” standard means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor. This standard, while similar to the O-1A standard in theory, is in practice an even higher level of extraordinary than the O-1A, in part because of how closely the evidence is scrutinized for the EB-1-1 petition. In addition, the manner in which the evidence is evaluated is more stringent for the EB-1-1. For example, USCIS adjudicators look for evidence that the extraordinary worker will “substantially benefit prospectively the United States” and that they will continue to work in their field.

Under the guidelines set up in Kazarian v. USCIS, 596 F.3d 1115 (9 Cir. 2010), USCIS is now required to conduct a two-step evaluation of petitions for foreign nationals of extraordinary ability: (1) determine whether the petitioner or self-petitioner has submitted the required evidence that meets the parameters for each type of evidentiary criteria listed at 8 CFR 204.5(h)(3); and (2) determine whether the evidence submitted is sufficient to demonstrate that the beneficiary or self-petitioner meets the required high level of expertise for the extraordinary ability immigrant classification during a final merits determination.

Evidence submitted in support of an O-1 is more liberally considered while evidence of a Green Card petition is very carefully scrutinized and narrowly interpreted. For example, a press article about a foreign national’s work or company without mentioning the person’s name may be sufficient to meet the O-1 evidentiary requirements. But in the context of the Green Card application, the published material should be about the alien specifically relating to his or her work in the field, not just about his or her employer or another organization with which the foreign national is associated.

There Must Be an Employer/Sponsor for O-1s While an Employer/ Sponsor Is Not Necessary for an EB-1-1

Another difference between the O-1 and an extraordinary ability Green Card application is that an O-1 must be sponsored by an employer/sponsor whereas a foreign national may self-petition for the EB-1-1. (Many EB-1-1 petitions are also sponsored by employers but it is not required.) The O-1 allows beneficiaries to enter the US to perform work for the sponsor only. Thus, foreign nationals represented by agencies may only accept or perform work through their agency. O-1Bs, in particular, are also allowed to attach O-2s who are "essential support personnel.” Essential members of the foreign national’s team do not get a Green Card if the foreign national applies for an EB-1-1.

With O-1 petitions, USCIS requires an employment agreement between the employer/sponsor and the foreign national beneficiary. The employment agreement typically states the beneficiary's expected earnings and that the petitioner will be responsible for all the work the beneficiary performs while in the US. In addition, if the employer is an agency that is representing the beneficiary—as compared to an in-house salaried position—the beneficiary will need to provide a tentative itinerary of events and engagements for the beneficiary’s duration of the proposed time in the US.  Additionally, if the applicant is in the US and is applying for an extension of stay, change of employment, or change of status, paystubs will need to be submitted to demonstrate maintenance of immigration status.  The O-1 petition requires a consultation letter from a labor union, and if there is no such labor union, it is recommended to submit a letter from an appropriate US peer group.

In contrast, the EB-1-1 application does not require an employment agreement, union consultation, or an itinerary of events, but the EB-1-1 application must clearly demonstrate that the applicant is coming to the US to continue to work in the area of expertise through a statement from the foreign national applicant or in the form of a letter from the sponsor or potential clients.

It is true that to gain access into the “EB-1-1 world,” the stakes are high and the standards are fierce. While some O-1 holders are certainly eligible and many successfully obtain an EB-1-1 Green Card after maintaining O-1 status, not all are eligible (or should apply, given their circumstances). But whatever the outcome, it’s important to stay extraordinary, in whatever sense of the word!