In January 2022, as part of an initiative by the Biden Administration to attract and retain STEM workers in the United States, USCIS issued policy guidance clarifying how it evaluates O-1A extraordinary ability and EB-2 National Interest Waiver (NIW) I-140 petitions for individuals in science, technology, engineering, or math (STEM) fields. For O-1s, the USCIS policy update included additional discussion of considerations that are relevant to evaluating evidence of eligibility, with a focus on the highly technical nature of STEM fields; while in the NIW context, the policy update articulated the prioritization of individuals with advanced STEM degrees for NIW classification. Since this guidance was released, there has been both an increase in filings and notable improvements in adjudicatory trends for both categories, especially in the NIW category.
USCIS has now published a fact sheet, STEM-Related Petition Trends: EB-2 and O-1A Categories FY 2018 – FY 2023, that confirms these adjudicatory trends. In both categories, the data reflects an increase in filings with USCIS since the new guidance took effect, with:
- O-1A receipts increasing from 7,710 in Fiscal Year (FY) 2021 (the year before the new guidance took effect) to 10,010 in FY 2023.
- NIW receipts for all job types increasing from 14,610 in FY 2021 to 39,810 in FY 2023.
The NIW data provided by USCIS is also broken down by job type, and this nuanced data reflects an increase in STEM NIW filings from 9,440 in FY 2021 to 20,950 in FY 2023, reflecting a significant change in NIW benefit requests resulting from the January 2022 policy guidance. In another notable trend, an increasing number of EB-2 petitioners are requesting an NIW, with the number of NIW requests nearly doubling from FY 2022 to FY 2023.
The data also reflect increased approval rates in both categories:
- O-1A approvals for beneficiaries in STEM fields increased by just over 1,000 approvals annually between FY 2021 (3,550 approvals) and FYs 2022-2023 (4,570 and 4,560 approvals, respectively).
- STEM NIW approvals increased from 7,670 in FY 2021 to 13,840 in FY 2022 and 21,240 in FY 2023.
Overall, the numbers provide a positive snapshot of increased usage and success rates in both the O-1A and NIW categories for STEM talent.
As processing timelines for PERM labor certifications in both the EB-2 and EB-3 categories continue to increase, employers are turning to the EB-2 NIW as an alternate path for their employees to secure green cards or apply for H1-B extensions beyond the 6-year statutory limit. Additionally, some employees who are not selected for H1B cap may be eligible for O-1 classification.
If you are interested in learning more about whether an O-1 or NIW may be right for you or your employee, please reach out to schedule a consultation with Klasko’s specialized EB-1/NIW/O1 team.
Please contact your Klasko Law attorney with any questions regarding this client alert.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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