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