One of the top queries we receive is if an individual applying for a Green Card should extend his or her O1 visa.
A bit of background information first. The Green Card application based on Extraordinary Ability has two distinct stages. Stage 1 of the process is called the I-140 immigrant petition, which is where you must demonstrate that you fulfill at least 3 out of the 10 Extraordinary Ability criteria. Upon approval of the I-140 petition you are eligible to apply for Stage 2 of the process called the I-485, Application to Adjust to Lawful Permanent Residence. This is the actual green card application, which allows you to also apply for work and travel authorization.
The I-485 application, when it is pending, provides you with authroized “legal status” which allows you to remain legally in the US while you are awaiting a decision on your green card. But it’s a limbo status. If your I-140 petition has been approved and there are no impediments to you obtaining a green card (i.e. criminal issues or other inadmissibility issued) in all likelihood you will obtain a green card in the future and the I-485 adjustment of status application will likely be approved.
Legally, you may file both of these stages together in what is called a Concurrent Filing. Concurrent filings allow the filing of the I-140 petition and the I-485 adjustment of status applications at the same time. There are immediate benefits to doing this, such as having full employment authorization in about 90 days; therefore, no longer being required to maintain your nonimmigrant O1 visa status.
Here we return to the question at-hand and address whether you should extend your O1 visa while you are applying for a Green Card, since you do have the option of filing both of these stages at once. The answer: it’s Fools Gold!
If you decide to not file the O1 extension and wish to continue with only the pending I485 application being your only authorized legal status in the US and the I-140 petition is denied, you are out of status in the US and must either appeal, refile under a special law called 245(k), or depart the US.
However, if you would have just filed Stage 1 of the process, the I-140 petition, and extended your O1 visa regardless of the outcome of the I-140 petition, you are legal to remain in the US and you have not terminated your nonimmigrant status.
Every case is different and may require you to file a Concurrent I140/I485 Green Card petition because the case strategy dictates it or there is no other option available at that time. However, beware of the pitfalls of not extending your O1 visa, and as always, consult with an immigration attorney first.