Increase in High-Skilled Worker Visas Under Biden Administration: A Closer Look.
Since the Biden administration released new guidance in 2022, there has been a notable rise in the filings and approvals of visas for high-skilled workers. The National Interest Waivers (NIW) and O-1A visa approvals have seen significant growth since 2021. However, some concerns have emerged that U.S. Citizenship and Immigration Services (USCIS) adjudicators may be applying stricter scrutiny.
In January 2022, the Biden administration announced new immigration guidelines, emphasizing that the O-1A visa and NIW categories were underutilized. This announcement triggered a surge in applications for these visas. According to USCIS, the O-1A visa is designated for “individuals with extraordinary ability in the sciences, education, business, or athletics” (excluding the arts, motion pictures, or television industry). Unlike the H-1B visa, which forces many individuals to leave the U.S. due to its annual cap, the O-1A visa has no such limitation, allowing eligible individuals to remain in the country.
The Department of Homeland Security (DHS) clarified in the January 2022 announcement how foreign nationals with extraordinary abilities are assessed for these visas. The guidance specifically highlighted Ph.D. holders in science, technology, engineering, or math (STEM) fields. It also provided examples of evidence that could meet the O-1A visa’s evidentiary requirements, offering valuable insights to applicants and their legal representatives.
Additionally, the guidance addressed the NIW category under the employment-based second preference green card system. The NIW allows individuals and employers to bypass the costly and time-consuming PERM certification process when applying for an immigrant visa. According to 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 statute does not specifically define what endeavors qualify for a national interest waiver, and applicants may self-petition, eliminating the need for an employer sponsor.
USCIS considers three main factors when deciding whether to grant an NIW:
1. The proposed endeavor has substantial merit and national importance.
2. The applicant is well-positioned to advance the proposed endeavor.
3. Waiving the labor certification and job offer requirements would benefit the U.S.
From fiscal year (FY) 2021 to FY 2022, there was an increase in O-1A visa applications, with approval rates rising from 91% to 94%. In FY 2023, applications continued to rise, though the approval rate slightly decreased to 92%.
NIW applications also saw significant growth. From FY 2021 to FY 2022, filings increased by over 50%, with approval rates climbing from 86% to 90%. However, from FY 2022 to FY 2023, while filings grew by over 80%, the approval rate dropped from 90% to 80%.
For those with questions about the O-1A or NIW visas, seeking professional advice is essential. Our team of experienced attorneys works closely with clients to explore all available options and ensure they receive the right guidance to achieve their desired outcomes.