In recent years, there has been a significant increase in filings and approvals for high-skilled visas, particularly O-1A visas and national interest waivers for employment-based green cards. This uptick follows favorable guidance published by the Biden administration. However, while businesses and high-skilled professionals have welcomed these changes, attorneys caution that the U.S. Citizenship and Immigration Services (USCIS) is now exercising increased scrutiny.
Biden Administration’s Immigration Guidance
On January 21, 2022, the Biden administration announced new immigration guidance aimed at broadening the eligibility for O-1A visas and national interest waivers. This move was part of a broader effort to attract high-skilled science and engineering talent, reversing the perceived hostility of the previous administration towards such individuals.
Lynden Melmed, a former chief counsel of USCIS, noted that the guidance signaled to employers and high-skilled foreign nationals that the O-1A visa category and national interest waivers were underutilized. The O-1A visa is designated for individuals with extraordinary ability in the sciences, education, business, or athletics, excluding the arts, motion pictures, and television industry. Unlike the H-1B visa, there is no annual cap on O-1A visas, allowing eligible individuals to remain in the United States without limitation.
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Changes in Eligibility and Criteria
The new guidance clarified how the Department of Homeland Security (DHS) determines eligibility for immigrants with extraordinary abilities, particularly in STEM fields. The update provided examples of evidence that could satisfy the O-1A evidentiary criteria and discussed considerations relevant to evaluating such evidence, emphasizing the technical nature of STEM fields.
Dan Berger of Curran, Berger & Kludt remarked that the new guidance was a welcome clarification, especially given that the criteria were established before the internet age. He believed it would make O-1A visas more accessible to highly skilled individuals.
National Interest Waivers
The guidance also included updates for national interest waivers in the employment-based second preference green card category. These waivers allow individuals and employers to bypass the PERM labor certification process, which can be costly and time-consuming. By obtaining a national interest waiver, applicants argue that their job offers and labor certification requirements should be waived because their work benefits the United States.
USCIS evaluates national interest waiver requests based on three factors:
- The proposed endeavor has substantial merit and national importance.
- The individual is well-positioned to advance the proposed endeavor.
- Waiving the job offer and labor certification requirements would benefit the United States.
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Significant Increase in Applications and Approvals
Following the new guidance, there has been a notable increase in both O-1A visa applications and national interest waiver requests. From FY 2021 to FY 2022, O-1A visa applications rose by 29%, and approval rates increased from 91% to 94%. The trend continued into FY 2023, with applications reaching 10,010, and a slight decline in approval rates to 92%.
National interest waivers saw an even more dramatic rise. From FY 2021 to FY 2022, requests increased by 51%, and approval rates rose from 86% to 90%. However, from FY 2022 to FY 2023, requests surged by 81%, while approval rates dropped from 90% to 80%.
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Increased Scrutiny and Future Trends
Despite the increase in applications, attorneys have observed that USCIS is now applying more scrutiny to these cases. Dagmar Butte of Parker Butte and Lane noted that while the category has been broadened, every case still needs to pass the rigorous standards set by the Matter of Dhanasar decision. Kevin Miner of Fragomen mentioned that national interest waivers focused on industries such as pharmaceuticals, renewable energy, and electric cars have been particularly successful, though there has been an increase in Requests for Evidence.
Lynden Melmed expects the trend of increased filings for O-1A visas and national interest waivers to continue, driven by the new guidance, challenges with the PERM process, and the desire of more individuals to self-petition.
The Biden administration’s immigration guidance has led to a significant rise in O-1A visa applications and national interest waiver requests, reflecting a broader effort to attract high-skilled talent to the United States. While the changes have been largely welcomed, the increased scrutiny from USCIS means that applicants must be well-prepared to meet the rigorous criteria.
If you are a high-skilled professional or an employer looking to navigate the complexities of O-1A visas or national interest waivers, the experienced Immigration law team at Bogin, Munns & Munns is here to help. Contact us today to schedule a consultation and learn how we can assist you in securing your visa and advancing your career in the United States.
Original Article Can be viewed here:
https://www.forbes.com/sites/stuartanderson/2024/07/30/o-1a-visas-national-interest-waivers-rise-after-immigration-guidance/
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