Do we have to wait 90 days and approval of extension with expired I94 to apply for I-485 for an on O3?


I am on an O1 visa with extension approved for next three years (Oct 2024). My spouse has recently entered US from Canada and has her O3 extension still pending that was filed timely before I94 expiration. Our PD is current now EB1 with I140 approved and we would like to file AOS but our attorney is suggesting to wait 90 days before filing AOS and moreover to wait for the O3 extension to be approved first (which might take a year!). Are these valid reasons to not file AOS ? Isn’t O1/O3 a ‘dual intent’ visa?

Reason for concern is that if my I485 is approved the before O3 extension then O3 might go out of status?

Assuming your spouse entered on a valid O-3 visa and extension of status filed in timely fashion after entering the US?

90 days wait period applies to single-intent non-immigrant visa. O-1 is dual-intent and so it also applies to O-1 dependents on O-3. I am not sure why your attorney is suggesting to wait 90 days.

Also if your spouse entered in valid O-3 status and applied timely extension, I don’t see any reason why approval is needed for O-3 EOS to be able to file AOS.

I would suggest consulting another immigration lawyer and get a second opinion.

Attorney claims that O1 is not exactly ‘dual intent’ visa but can get a second opinion on this. I can wait for 90 days but the other issue with O3 extension, the company lawyer claims that as O3 extension is pending my spouse is not exactly in valid status. There is an argument that can be made using INA Section 245(k) that allows 180 days of unlawful presence that can be used but lawyers say it is gray area and depends on officer and there is a change of denial. I spoke with two lawyers each lawyers gave different advice some say its ok and other say to be cautious. So I am not sure.

I think it’s best to just follow your attorney’s advice.