Change Status from B1/B2 to O1-A visa [edited title]

[Leeching Spouse 87]

6 minutes ago, SusieQQQ said:

Terminology seems to be confusing people, as is the various purposes of an i129.

 

If you move from one non-immigrant status to another that is change of status.

If you move from non-immigrant to immigrant status, that is adjustment of status.

People here most commonly see i129 in regard to fiancé visas and assume it is only that, but in fact it is also a petition for a non-immigrant worker. 
Due to the confusion around all these issues I am not sure OP has got best advice, however, an O1 visa/change of status application certainly would be best done utilizing a lawyer,  so assuming there is a company lawyer doing this that is the best person to ask.

 

Btw in regards to the 90 day rule - yes it can still apply in an instance like this, should uscis decide that this is one of the rare cases where they want to make an issue of it.

 

edit: above was written before I saw page 2 where sm1smom and mollie09 have brought some sense to the thread  

Thank you Susie. Would you be able to edit the title of this thread to "Change of Status" (rather than "Adjust status") to avoid confusing others further?

Edited July 18, 2022 by CanadianMD

[SusieQQQ 11,587]

1 minute ago, CanadianMD said:

Thank you Susie. Would you be able to edit the title of this thread to "Change of Status" (rather than "Adjust status") to avoid confusing others further?

You’d need to ask a moderator to do that. Hit the “report” link on one of your posts to send a message to the moderation team.

[Kai G. Llewellyn 838]

I don't think OP needs a visa foil from a Consulate to re-enter the US in O status as they're a Canadian citizen. So the Change of Status alone once approved should allow them to re-enter as an 'O' but will be subject to whatever requirements CBP imposes on Canadian applicants for admission under the O category.

 

See: https://ca.usembassy.gov/visas/do-i-need-a-visa/

 

Canadians only require visas for:

Immigration

Treaty Traders (E)

Nonimmigrant Spouse and dependants (K-3/K-4)

Nonimmigrant Spouses of LPRs  and dependants(V-1/V-2)

Nonimmigrant Fiance(e) of USC's and dependants (K-1/K-2)

Foreign Govt Officials (A)

Officials of Int Orgs (G)

Nato Officials (NATO)

 

Outside of the above categories they may apply for the status they require at the border subject to the requirements of CBP and the INA to be eligible for the status requested.

 

Imo, OP is fine to change status, and once approved they can re-enter with proof of an approved petition.

Edited July 18, 2022 by Kai G. Llewellyn

[SalishSea 17,981]

2 hours ago, CanadianMD said:

You're right. My original thinking was that since the O1A is a dual intent visa, in the event that the consulate processing takes too long, I can switch and apply for an adjustment of status instead.

That's not how that works, as I pointed out.

 

You will need to interview for a visa at the consulate.

[SalishSea 17,981]

1 hour ago, SusieQQQ said:

Terminology seems to be confusing people, as is the various purposes of an i129.

 

If you move from one non-immigrant status to another that is change of status.

If you move from non-immigrant to immigrant status, that is adjustment of status.

People here most commonly see i129 in regard to fiancé visas and assume it is only that, but in fact it is also a petition for a non-immigrant worker. 
Due to the confusion around all these issues I am not sure OP has got best advice, however, an O1 visa/change of status application certainly would be best done utilizing a lawyer,  so assuming there is a company lawyer doing this that is the best person to ask.

 

Btw in regards to the 90 day rule - yes it can still apply in an instance like this, should uscis decide that this is one of the rare cases where they want to make an issue of it.

 

edit: above was written before I saw page 2 where sm1smom and mollie09 have brought some sense to the thread  

To be fair, the OP did not explain the situation using correct terminology.  

 

And I stand by what I said:  that visas are not issued within the US, and that he would need to apply for a visa at a consulate after an approved I-129.

[Leeching Spouse 87]

15 minutes ago, Jorgedig said:

To be fair, the OP did not explain the situation using correct terminology.  

 

And I stand by what I said:  that visas are not issued within the US, and that he would need to apply for a visa at a consulate after an approved I-129.

As @Kai G. Llewellyn mentioned above, Canadians don't need a visa to enter the US on an O1A if approved...

[arken 4,197]

Lost of terminology confusions here.

 

In summary:

If you are in the US on a B2 status, you through your employer can apply for change of status (COS) to O1A status.

 

If you leave US while your COS to O1A is pending, COS will be denied even if petition is approved.

 

If your COS is approved while in the US, you can stay in the US while satisfying terms of the new status.

 

If your EB i140 is approved and PD is current, you can file for AOS and not go through consular processing. You have to maintain the status till your AOS is approved.

 

 

 

 

[Leeching Spouse 87]

33 minutes ago, Kai G. Llewellyn said:

I don't think OP needs a visa foil from a Consulate to re-enter the US in O status as they're a Canadian citizen. So the Change of Status alone once approved should allow them to re-enter as an 'O' but will be subject to whatever requirements CBP imposes on Canadian applicants for admission under the O category.

 

See: https://ca.usembassy.gov/visas/do-i-need-a-visa/

 

Canadians only require visas for:

Immigration

Treaty Traders (E)

Nonimmigrant Spouse and dependants (K-3/K-4)

Nonimmigrant Spouses of LPRs  and dependants(V-1/V-2)

Nonimmigrant Fiance(e) of USC's and dependants (K-1/K-2)

Foreign Govt Officials (A)

Officials of Int Orgs (G)

Nato Officials (NATO)

 

Outside of the above categories they may apply for the status they require at the border subject to the requirements of CBP and the INA to be eligible for the status requested.

 

Imo, OP is fine to change status, and once approved they can re-enter with proof of an approved petition.

Thank you so much. This really reassures me.

 

Do you know if there be any issues if I were to enter the US on a B2 visa with the intention of applying for change of status under the O1A I-129 petition? I reviewed the USCIS website and found the following:

 

"If you want to change the purpose of your visit while in the United States, you (or in some cases your employer) must file a request with USCIS on the appropriate form before your authorized stay expires. For instance, if you arrived here as a tourist but want to become a student [temporary worker in my case], you must submit an application to change your status......... 

 

In general, you may apply to change your nonimmigrant status if you were lawfully admitted to the United States with a nonimmigrant visa, your nonimmigrant status remains valid, you have not violated the conditions of your status, and you have not committed any crimes that would make you ineligible."

 

Would having the intent of changing status to O-1A via I-129 render my original B2 visa status invalid?

[Leeching Spouse 87]

6 minutes ago, arken said:

Lost of terminology confusions here.

 

In summary:

If you are in the US on a B2 status, you through your employer can apply for change of status (COS) to O1A status.

 

If you leave US while your COS to O1A is pending, COS will be denied even if petition is approved.

 

If your COS is approved while in the US, you can stay in the US while satisfying terms of the new status.

 

If your EB i140 is approved and PD is current, you can file for AOS and not go through consular processing. You have to maintain the status till your AOS is approved.

Thank you. In the situation of the bolded/italicized/underlined sentence, do I have to carry along my I-797A whenever I travel outside of the US so that I can re-enter the US without issues during those 3 years?

Edited July 18, 2022 by CanadianMD

[Sm1smom 254]

2 hours ago, CanadianMD said:

Thank you. I'm a bit confused given that interview waivers have been granted for O1A applicants at US consulate/embassy till end of 2022. I was under the impression that as a Canadian Citizen, I am exempted from needing to obtain a non-immigrant visa prior to entry into the US.

 

What's the point of granting interview waivers, if the beneficiary still has to make an appointment at the consulate to get the visa?

 

Would you also be able to elaborate on what you mean by "limited dual intent visa"? Besides the Advanced Parole needed prior to travel for O1A, are there any other differences?

 

I do have an approved I-140 petition, and whether I decide to do consular processing or adjustment of status should not matter. This should not be grounds for denial based on USCIS Policy 9 FAM 402.13-5(B) (U) Effect of Filing Immigrant Visa Petition:

"(U) USCIS has determined that the approval of a permanent labor certification or the filing of a preference petition shall not be a basis for denying classification as an O-1 or O-3 dependent.  The noncitizen may legitimately come to the United States for a temporary period as an O-1 or O-3 dependent 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."

I think you’ve misunderstood what you read from the link you provided. Yes, there’s an in-person interview waiver for certain categories of applicants who meet certain requirements (I will not bother to list those as it is well explained there already). However, those set of people still need to apply for the visa at an applicable embassy/consulate, they just will not need to go into the embassy/consulate in person for an interview - they mail in their passport and the visa gets issued without their having to attend an interview. That is what the interview waiver is about. 
 

In your specific case however as a Canadian if you are outside the US when the I-129 gets approved, (I did not note that fact earlier in any of my previous responses), you do not apply for a visa from an embassy following the I-129 approval. You basically present yourself at any POE with the approved I-129 and seek for admission on O1 status because in most circumstances, Canadians citizens do not require visitor, business, transit or other visas to enter the US either from Canada or from any other countries (with the exception of a few visa categories of course).

 

The need to have an approved AP prior to traveling out of the US with a pending I-485 application while on O1 status is what makes it a limited dual intent visa/status compared to a H-1B or L visa/status which do not require an approved AP prior to traveling out of the US with a pending I-485. Returning to the US with AP card automatically switches you over from O1 to a parolee, and if for some reason the I-485 application gets denied, you no longer have a valid status to fall back on in that case also makes it a limited dual intent visa/status. It is typically recommended for folks on O1 a status to not undertake a foreign trip outside the US when they have an AOS application pending. 

 

Edited July 18, 2022 by Sm1smom

[Sm1smom 254]

34 minutes ago, Jorgedig said:

To be fair, the OP did not explain the situation using correct terminology.  

 

And I stand by what I said:  that visas are not issued within the US, and that he would need to apply for a visa at a consulate after an approved I-129.

As a Canadian citizen, OP does not need to apply for a visa at a consulate after an approved I-129. If the OP is outside the US after the I-129, approval, OP goes to the POE with the approved I-129 and seek admission right there. 

[arken 4,197]

29 minutes ago, CanadianMD said:

Thank you. In the situation of the bolded/italicized/underlined sentence, do I have to carry along my I-797A whenever I travel outside of the US so that I can re-enter the US without issues during those 3 years?

Correct if you are entering back on O1A.

 

However as said above, if you file for AOS and you travel back and forth on O1A, your i485 will be deemed abandoned. You have to use AP to enter into the US if i485 is filed to keep it alive.

Edited July 18, 2022 by arken

[Leeching Spouse 87]

1 minute ago, arken said:

Correct if you are entering back on O1A.

 

However as said above, if you file for AOS and you travel back and forth on O1A, your i485 will be deemed abandoned. You have to use AP to enter into the US if i485 is filed. 

Thank you again. I would add your previous summary to the pinned thread if possible!!

 

One more question - would having the intent for CHANGE of status to O-1A via I-129 render my original B2 visa status invalid? (Not referring to Adjustment of status)

[SalishSea 17,981]

26 minutes ago, Sm1smom said:

As a Canadian citizen, OP does not need to apply for a visa at a consulate after an approved I-129. If the OP is outside the US after the I-129, approval, OP goes to the POE with the approved I-129 and seek admission right there. 

And if he is inside the US when it is approved?

 

His whole premise was to adjust status from inside the US to avoid having to apply for a visa.

[SalishSea 17,981]

37 minutes ago, Sm1smom said:

Canadians citizens do not require visitor, business, transit or other visas to enter the US either from Canada or from any other countries (with the exception of a few visa categories of course).

Interesting that OP has a B2, he says.