After the publication of new immigration guidelines by the Biden administration in 2022, there has been a notable rise in visa applications and approvals for high-skilled workers. In particular, approvals for National Interest Waiver visas (NIW) and O-1A visas increased significantly. Despite this increase, there are concerns that U.S. Citizenship and Immigration Services (USCIS) may be scrutinizing applications more closely.
In January 2022, the Biden administration released new guidelines, suggesting that O-1A and NIW visas were being underused. This led to a surge in applications. The O-1A visa is for people with exceptional skills in fields like science, education, business, or athletics (excluding arts and entertainment). Unlike H-1B visas, O-1A visas don’t have an annual cap, so people who qualify don’t need to leave the U.S.
The new guidelines also provided details on how USCIS evaluates applicants with extraordinary abilities. The Department of Homeland Security (DHS) highlighted Ph.D. holders in STEM fields as good candidates and gave examples of evidence that might support an O-1A visa application.
For NIWs, which fall under the employment-based second preference green card category, the new guidance explained how the process works. NIWs allow individuals to bypass the costly and time-consuming PERM certification process. Applicants can self-petition, meaning they don’t need an employer to sponsor them.
To qualify for a NIW, applicants must show:
- 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.
From FY2021 to FY2022, applications for O-1A visas increased, with approval rates rising from 91% to 94%. However, in FY2023, while applications continued to grow, the approval rate slightly dropped to 92%. For NIW, applications surged by over 50% from FY2021 to FY2022, with approval rates increasing from 86% to 90%. Yet, in FY2023, filings grew by over 80%, but the approval rate fell 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 every step of the way, considering all possible options to reach their desired outcome.