Filings and approvals for high-skilled visas have surged following favorable guidance from the Biden administration. Since 2021, data indicates a significant rise in approvals for O-1A visas and national interest waivers for employment-based green cards. This shift has been welcomed by businesses and high-skilled professionals, though attorneys note that U.S. Citizenship and Immigration Services (USCIS) is now applying increased scrutiny. This guidance is part of a broader effort by the Biden administration to attract high-skilled science and engineering talent, reversing the perceived hostility from Trump-era policies.
On January 21, 2022, the Biden administration issued new immigration guidance, signaling to employers and high-skilled foreign nationals that the O-1A visa category and national interest waivers were previously underutilized.
Previously, attorneys and employers felt that USCIS had a restrictive interpretation of eligibility for these visas, a situation exacerbated by the Trump administration’s policies. A Biden administration official indicated that the new policy aims to significantly broaden eligibility for O-1A visas in STEM fields.
The new guidance also addressed national interest waivers for employment-based second preference green cards. National interest waivers allow individuals and employers to bypass the costly and time-consuming PERM process when applying for an immigrant visa. The permanent labor certification program can take over a year to process applications, and some employers are unable to file if they have recently laid off employees.
USCIS explains that national interest waivers are granted based on three criteria: the proposed endeavor must have substantial merit and national importance, the individual must be well-positioned to advance the endeavor, and waiving the job offer and labor certification requirements must benefit the United States.
Following the new guidance, there has been a notable increase in O-1A applications and national interest waiver requests. From FY 2021 to FY 2022, O-1A visa applications rose by 29%, from 7,710 to 9,970, with the approval rate increasing from 91% to 94%. In FY 2023, applications continued to climb to 10,010, with a slight decline in the approval rate to 92%.
National interest waivers saw an even more dramatic increase. From FY 2021 to FY 2022, requests rose by 51%, from 14,610 to 21,990, with the approval rate increasing from 86% to 90%. However, from FY 2022 to FY 2023, requests surged by 81%, from 21,990 to 39,810, and the approval rate dropped to 80%.
This data underscores the impact of the Biden administration’s immigration policies on high-skilled visa approvals and highlights the ongoing scrutiny by USCIS in adjudicating these applications.
