Following the Biden administration 2022 publication of favorable guidance, an increase in filings and approvals of visas for high-skilled workers increased. National interest waivers (NIW) and O-1A visas approvals grew significantly since 2021. However, there is some concern that U.S. Citizenship and Immigration Services (USCIS) adjudicators are using a higher degree of scrutiny.

In January of 2022, the Biden administration announced new immigration guidance, suggesting the O-1A visa and NIW were underutilized. As such, the growth in filings for these visas began. Per USCIS, “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)”. As there is no annual cap on O-1A visas, eligible individuals are not required to leave the United States. In comparison, H-1B petitions cause many individuals to leave the country each year.

Per the January 2022 announcement, the Department of Homeland Security (DHS) outlined how determinations are made for foreign nationals of extraordinary abilities. DHS specified Ph.D. holders in science, technology, engineering, or math (STEM) fields in the announcement. Examples of evidence that may meet the O-1A evidentiary criteria was also included, providing applicants and their legal representatives with helpful insights.

Guidance for NIW in the employment-based second preference green card category was also provided. The NIW lets individuals and employers avoid PERM when filing for an immigrant visa. PERM certification is expensive and lengthy. Per USCIS, “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”. 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).”

The three factors that USCIS considers in granting a NIW are:

  • Substantial merit and national importance,
  • Individual is “well positioned to advance the proposed endeavor”, and
  • Waiving the labor certification and job offer requirements is beneficial to the U.S.

Increases in O-1A Visa applications were seen from FY2021 to FY2022. For the same time frame, approvals went from 91% to 94%. In FY2023, O-1A visa applications rose again, with a slight decline to 92% approvals.

For NIW, from FY2021 to FY2022 an increase of over 50% was seen for filings. Approval ratings increased, from 86% to 90% for the same time frame. Looking at FY2022 to FY2023, filings grew over 80%, but the approval rate dropped from 90% to 80%.

If you have questions about the O-1A or NIW visa, contact us. Our team of experienced attorneys work directly with our clients considering all possible options to reach their desired outcome, ensuring they get the right advice.

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