People are reflected in the window of the Nasdaq MarketSite in Times Square in New York City. . [+] Filings and approvals increased significantly for high-skilled visas after the Biden administration published favorable guidance. (Photo by Spencer Platt/Getty Images)
Filings and approvals increased significantly for high-skilled visas after the Biden administration published favorable guidance. Data show approvals for O-1A visas and national interest waivers for employment-based green cards have risen significantly since 2021. Businesses and high-skilled professionals welcomed the change, but attorneys caution adjudicators at U.S. Citizenship and Immigration Services are showing increased scrutiny. The guidance represented part of a broader Biden administration push to welcome high-skilled science and engineering talent that reversed what many employers and attorneys viewed as hostility toward such talent from Trump officials.
On January 21, 2022, the Biden administration announced new immigration guidance. The guidance “waived a flag” to employers and high-skilled foreign nationals that USCIS believed the O-1A visa category and national interest waivers were underutilized, according to Lynden Melmed of BAL, a former chief counsel of USCIS. “It signaled that many more people might be eligible for these categories,” said Melmed.
“O-1A [are for] individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry),” according to USCIS. There is no annual limit on O-1A visas, which means eligible individuals would not be prevented from staying in the United States. The annual limit on new H-1B petitions cause many highly skilled people to leave America each year.
Attorneys and employers believed that, in the past, USCIS had adopted a narrow view of who was eligible for the visas, and Trump administration policies made gaining approvals of O-1A visas even more difficult. A Biden administration official said on background the new policy was expected to expand significantly the eligibility for O-1A visas in STEM fields. (See here for the USCIS policy manual update on O-1A visas.)
MORE FROM FORBES ADVISOR“In this update, the Department of Homeland Security (DHS) is clarifying how it determines eligibility for immigrants of extraordinary abilities, such as Ph.D. holders, in the science, technology, engineering, or math (STEM) fields,” according to a fact sheet released in January 2022. “The new update provides examples of evidence that may satisfy the O-1A evidentiary criteria and discusses considerations that are relevant to evaluating such evidence, with a focus on the highly technical nature of STEM fields and the complexity of the evidence often submitted.”
When the Biden administration announced the new guidance, Dan Berger of Curran, Berger & Kludt predicted it would help. “O-1 visas had become more difficult to obtain,” he said. “New guidance is helpful to clarify how the statutory criteria apply to STEM fields and the modern world. Many of the criteria were written before the internet age.”
The Biden administration also issued new guidance for national interest waivers in the employment-based second preference green card category. Receiving a national interest waiver allows individuals and employers to avoid PERM when filing for an immigrant visa. The permanent labor certification program is expensive and the Department of Labor can take a year or more to process applications. Some employers may be unable to file PERM applications if they recently laid off employees. (See here for a discussion of problems with PERM.)
“Those seeking a national interest waiver are requesting that the job offer, and thus the labor certification, be waived because it is in the interest of the United States,” according to USCIS. “The endeavors that qualify for a national interest waiver are not defined by statute . . . Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them).”
USCIS states that it considers three factors in deciding to grant a national interest waiver: “The proposed endeavor has both substantial merit and national importance,” the individual is “well positioned to advance the proposed endeavor” and waiving the job offer and labor certification requirements “would be beneficial to the United States.”
One can see a significant rise in O-1A applications and national interest waiver requests in the two years following the release of the new guidance.
From FY 2021 to FY 2022, receipts for O-1A visa applications increased by 29%, from 7,710 to 9,970. Yet despite the significant growth in applications, the approval rate at USCIS for O-1A visas rose from 91% to 94%. In FY 2023, O-1 visa applications continued to rise to 10,010, and the data show only a slight decline in the approval rate (92%) for completed cases compared to the previous year.
The data on national interest waivers paint a more interesting picture. Receipts for national interest waiver requests rose by 51% from FY 2021 to FY 2022 (14,610 to 21,990), according to a National Foundation for American Policy analysis. Like O-1A visas, the approval rate for national interest waivers increased from 86% to 90% in FY 2022 despite the additional applications. (Not all cases are adjudicated in the fiscal year they are received.)
The situation changed the following year. For FY 2022 to FY 2023, receipts for national interest waiver requests rose by a remarkable 81%, from 21,990 to 39,810. Yet, unlike the year before, the approval rate for national interest waivers dropped from 90% to 80% in FY 2023.
Dagmar Butte of Parker Butte and Lane is not surprised the approval rate for national interest waivers declined. “I think while the category has been broadened, Matter of Dhanasar still rules the day, so for me, every case has to pass that test before I’ll file it,” she said. Butte referenced the Administrative Appeals Office decision Matter of Dhanasar (December 27, 2016), which established the three-factor test (cited above) for national interest waivers.
“We have definitely seen much better adjudications of national interest waivers since USCIS announced the new guidance,” said Kevin Miner of Fragomen. “National interest waivers focused on pharma, renewable energy, electric cars and similar areas are the most successful. We have recently started to see more Requests for Evidence on national interest waivers, so it may be that USCIS is starting to tighten up its approach.”
Lynden Melmed believes the USCIS guidance, problems with the PERM process and the desire of more individuals to petition for themselves have increased O-1A visa filings and requests for national interest waivers. He anticipates these factors will continue and that we could see a steady increase in the number of O-1A and EB-2 national interest waiver cases filed with USCIS.