When is the best time to file my I-485 on an O-1 visa in order not to be affected by the 90-day rule? - EB5Investors.com

When is the best time to file my I-485 on an O-1 visa in order not to be affected by the 90-day rule?

I currently hold an O-1 visa and also have an accepted I-140 application for a green card (acceptance notice received the Feb. 15). Due to some family matters, I had to do a couple of trips back to Italy this summer and I held the application of the adjustment of status. I am now back in the U.S. and ready to file my I-485. This is why I am wondering, is it a dual intent visa? Can I file the I-485 right now, or do I have to wait because of the 90-day rule and my current O-1 visa status?

Answers

Dennis Tristani

Dennis Tristani

Find an EB-5 Visa Lawyer: Immigration Attorney
Answered on

Although the Foreign Affairs Manual of the U.S. Department of State confirms that having a pending green card petition is not a reason to deny an O-1 visa, the conservative approach is to wait 90 days before filing adjustment of status as the O-1A visa is not a full dual-intent visa like the H-1B visa or L-1 visa.

Lynne Feldman

Lynne Feldman

Find an EB-5 Visa Lawyer: Immigration Attorney
Answered on

O-1 is not dual intent so if you file for adjustment, best to wait for the travel permit (called advance parole.)

Bernard P Wolfsdorf

Bernard P Wolfsdorf

Find an EB-5 Visa Lawyer: Immigration Attorney
Answered on

The O-1 is not a fully dual intent visa, but USCIS has determined that the filing of a preference petition shall not be a basis for denying classification as an O-1 or O-3 dependent. Therefore, it may be argued that the USCIS 60-day rule and Department of State 90-day rule do not apply. If you want to be conservative waiting over 60 days is a good idea, and if you are very conservative, waiting over 90-days makes sense.

DISCLAIMER: the information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program. Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public: do not include confidential information in your question.