I had my IR-1 interview about 18 months ago. The case is under AP since. At the time of interview, I also had O-1 petition approved through my future employer. Now, I'm thinking to apply for O-1 visa. Do I need to withdraw my IR-1 visa application, or can I just schedule my O-1 visa interview?
Have your attorney apply for the O-1 petition with USCIS and see what happens. If and when approved by USCIS, then you could apply for the O-1 visa, which may or may not be granted, depending on the true nature of that "AP".
If my answer is the "BEST ANSWER" and/or "HELPFUL" please mark it accordingly. Fluent in 7 languages. Certified Specialist in U.S. Immigration & Nationality Law, The State Bar of California, Board Of Legal Specialization. 25 years of successful immigration law experience. The answer above is only general in nature and cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.
Sorry, the O-1 doesn't allow for dual intent: https://fam.state.gov/fam/09FAM/09FAM040213.html
PROFESSOR OF IMMIGRATION LAW for 10+ years, practicing 100% immigration law for over 40 years -- All responses on this blog are offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.
If your IR-1 interview is still under review, your O-1 visa is likely to be denied. If the only reason for you to get the O-1 is to have permission to work while waiting for your IR-1 to be adjudicated, you will likely be denied, since you have already showed that you had intent to remain in the USA permanently.
All answers to immigration questions should not be taken as legally binding advice. Todas las respuestas a las preguntas de inmigración no deben tomarse como asesoramiento legal.
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. These same standards apply to O-3 aliens accompanying the O-1 principal applicant.
Is my answer "BEST ANSWER" and/or "HELPFUL"? If so, please acknowledge and mark it so. Mr. Smith has 25 years of successful U.S. immigration law experience with cases just like yours. Still, his response is general in nature, as all the facts are unknown to him, and cannot be construed as legal advice. Please retain immigration counsel to analyze your particular situation in order to receive specific advice. Specific answers requires knowledge of all the pertinent facts of your case. Any answers offered by Mr. Smith on Avvo are of a general nature only, and does not create an attorney-client relationship.
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