Future O1 visa applications after green card denial (I-140)

[Lysam 0]

I was in the USA with an O1 visa a few years ago.

In the USA my lawyer filed an I-140 petition for permanent residence (green card).

The petition was denied and I left the USA before my O1 visa expired.

Will the green card denial make it more difficult to obtain a new O1 visa in future? I understand that the O1 Visa allows dual intent, but does that work in practice?

I am hoping to go back.

Any advice would be greatly appreciated!

 

 

[Boiler 45,852]

Well a declined petition will not make it easier, no doubt the reason is material.

[Lysam 0]

Thanks for replying. The reason for denial was that I did not meet the green card "extraordinary ability" requirements, which have a higher evidentiary standard than the O1 visa.

 

In short, USCIS thought I was accomplished enough for O1 but not for green card.

 

Does that improve prospects a little for another O1 petition?

[SusieQQQ 11,587]

26 minutes ago, Lysam said:

I was in the USA with an O1 visa a few years ago.

In the USA my lawyer filed an I-140 petition for permanent residence (green card).

The petition was denied and I left the USA before my O1 visa expired.

Will the green card denial make it more difficult to obtain a new O1 visa in future? I understand that the O1 Visa allows dual intent, but does that work in practice?

I am hoping to go back.

Any advice would be greatly appreciated!

 

 

There is clear immigrant intent demonstrated and while the O1 "allows" dual intent, you can still get a 214b (immigrant intent) denial for an O visa, even while dual intent is permitted.* It's hard to say. Expect the CO interviewing you to ask about your previous green card petition and whether you intend to try file another. 

 

 

* From the FAM: https://fam.state.gov/fam/09FAM/09FAM040213.html#M402_13_5_B

9 FAM 402.13-10  REFUSING O VISAS

(CT:VISA-713;   11-30-2018)

a. Applying 214(b): An O-1 applicant is presumed to be an immigrant until he or she establishes to your satisfaction that he or she is entitled to O-1 nonimmigrant status, and the standards for applying 214(b) described in 9 FAM 302.1-2(B)(3) apply to O-1 applicants. Under 8 CFR 214.2(o)(13), a "temporary" intent to remain in the United States is a requirement for O-1 classification.  However, an applicant for an O-1 visa does not have to have a residence abroad which he or she does not intend to abandon.  Further, as explained in 9 FAM 402.13-5(B) above, “dual intent” is permissible for O-1 visa holders. 

[Lysam 0]

Thanks. If in the O1 visa interview the applicant tells the CO that a new green card petition *might* be filed depending on how the work goes, is that acceptable?

[Boiler 45,852]

Not a question of acceptable, if it is true and you are asked then just say it.

[SusieQQQ 11,587]

2 minutes ago, Lysam said:

Thanks. If in the O1 visa interview the applicant tells the CO that a new green card petition *might* be filed depending on how the work goes, is that acceptable?

You should always answer any question truthfully, regardless of whether or not you think it might be "acceptable". However, you do not need to volunteer information. So you do not need to give the above as unsolicited information to the CO, but if the question is asked it must be answered truthfully. 

[Lysam 0]

Does it make a material difference that more than ten years have elapsed since the green card denial? I haven't been to the USA since.

[SusieQQQ 11,587]

7 minutes ago, Lysam said:

Does it make a material difference that more than ten years have elapsed since the green card denial? I haven't been to the USA since.

No, what matters is your intent now.

 

(You didn't do anything "wrong" before either so nothing to count against you from before (no overstay etc) - these are normally the cases where people have to wait ten years before reapplying.)

 

Edited April 23, 2019 by SusieQQQ

[Lysam 0]

Am I still eligible to use the Visa Waiver Program for appropriate purposes? (Meetings and events attendance.)

[Boiler 45,852]

You would need to complete ESTA and find out.

[fs2439 46]

7 hours ago, Lysam said:

Does it make a material difference that more than ten years have elapsed since the green card denial? I haven't been to the USA since.

To me it wohld seem like this will help you, because so much can change in 10 years.

 

Out of curiosity, was it o1a or o1b? Did you try for eb1? Did tbey say you met any citeria?

 

Thanks

[Lysam 0]

It was an O1b visa (for artists). The reason for the EB1 denial was that I wasn't quite accomplished enough to satisfy the EB1 standard. 

 

Here is a very encouraging extract from the Foreign Affairs Manual:

 

"DHS has determined that the approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 or O-3 petition, a request to extend such a petition, or the alien’s application for admission, change of status, or extension of stay.  The alien may legitimately come to the United States for a temporary period as an O-1 or O-3 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States."

 

(My emphasis. Source: https://fam.state.gov/fam/09FAM/09FAM040213.html)

[Boiler 45,852]

Have you hat a chat with your Lawyer?

[Lysam 0]

Boiler: not yet.