Quick Takeaways
- NIW submissions have almost tripled since 2022 with approval rates dropping 10%
- O-1A submissions increased but have steadied while approval rates consistently above 90%
- Data consistent with recent Green and Spiegel publication through Institute for Progress
Amid ongoing scarcity of traditional nonimmigrant visa classifications like H-1B due to the program’s significant oversubscription, ballooning processing times at the U.S. Department of Labor, and job security issues following widespread layoffs in the tech sector, more and more clients have come to our firm looking for alternative routes for gaining and maintaining work authorization in the United States. Indeed, the once tried-and-true transitions from student to H-1B worker to employment-based green card holder have become increasingly precarious at each step, thereby forcing institutional and individual petitioners – and in particular, individuals – to pursue paths for short and long-term employment-based on options that were not only previously considered unattainable for most foreign nationals and their sponsors, but also classifications that, if not recession-proof, at least less tied to a specific employer’s identity. Indeed, some of these paths remain unavailable to many workers; but, for a large swath of STEM graduates working in select fields, USCIS’ January 2022 Policy Guidance offered reasons for optimism that petitioners, per recent data, have leveraged in droves.
As recently discussed in an article this post’s author’s co-wrote for the Institute for Progress, USCIS has seen an intense increase in EB-2 National Interest Waiver (“NIW”) and O-1A (Extraordinary Ability in Business, Sciences, Education, Athletics) Petitions since the Service issued the aforementioned Policy Guidance in January 2022 that, in pertinent part, provided stakeholders with clearer methods by which STEM graduates working in critical and emerging technologies could satisfy the lofty thresholds for NIW and O-1A classification. Indeed, Forbes recently published a quasi-companion piece illustrating how after receiving almost 15,000 NIW Petitions in 2021, individuals and entities submitted nearly 22,000 NIW Petitions in 2022, with that number jumping to almost 40,000 in 2023. And while not as substantial as the NIW, O-1A Petitions also increased from more than 7,500 in 2021 to approximately 10,000 in 2022 and 2023, representing a 33% rise over this same period. The surge in O-1A Petitions has not materially impacted USCIS’ approval rate for same, with the petition’s likelihood of success remaining in the low-to-mid-nineties. However, NIW Petition approval rates, after elevating to 90% in 2022 from 86% in 2021, decreased to only 80% in 2023, possibly due to the a predictable push from practitioners and clients alike to, consciously or not, test the new Policy Guidance’s outer limits on questionable cases.
While it is too early to glean any meaningful trends from 2024’s NIW and O-1A submissions, we continue to be encouraged by USCIS offering clarity and predictability in our collective push to retain high-skilled foreign nationals working in vital STEM fields, within the United States. In fact, Green and Spiegel is at the forefront of these efforts through the Firm’s publications and participation in organizations championing foreign national STEM graduates’ ability to remain in this country and continue to contribute their academic, personal, and cultural gifts to the United States. Thus, if you have any questions regarding whether your case could benefit from USCIS’ updated Policy Guidelines and this Administration’s emphasis on enhancing options for prospective NIW and O-1A employers and employees alike, please not hesitate to contact our Firm.
