Immigration to the US is Changing: The Increasing Importance of National Interest Waivers (NIWs)

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    Immigrating to the US is notoriously difficult. Recent changes, however, have made a path to obtaining residency that doesn’t require a US job offer increasingly popular. Called the National Interest Waiver (NIW), this method enables aspiring immigrants to build a case for why granting them permission to immigrate would be in the US’s own best interests. As a result, people with advanced degrees and unique skills — especially in desirable STEM fields — can now apply to live in the US without needing the official imprimatur of an American employer.

    What is the National Interest Waiver?

    Traditionally, the main way to secure an employment-based visa to the US, which permits permanent residence, was through Permanent Employment Certification (PERM), which establishes the individual’s employment with a US company or organization. But this method may be on the way out.

    Carlos Colombo, co-founder of immigration law firm Colombo & Hurd, has tracked data from US Citizenship and Immigration Services (USCIS) and discovered what he calls a “seismic shift” in the way immigrants file their applications. “I like to say PERM is dead, while NIW is exploding in popularity,” he says. 

    The NIW is an alternative way to secure an employment-based visa that gives people the opportunity to make a case for their residency based on their own merits, rather than on the say-so of a US employer. “Many immigrants are entrepreneurs and self-made people,” Colombo observes. “A lot of them are the job creators themselves, so it’s not appropriate to require them to get a job with someone else’s company. The NIW was created to account for people in this position.”

    To qualify for an EB-2 visa through the NIW, applicants highlight their social contributions to the US. “If you can show that your work would be in an area of inherent value that’s in the US’s national interest, then the NIW could work for you,” Colombo says.

    The increasing popularity of NIW

    According to Colombo’s analysis of USCIS’s numbers, the number of NIW petitions has jumped in recent years. As a baseline, he points to the applications the USCIS approved in 2017 — eight percent relied on the NIW, while the other 92 percent went through the PERM process.

    In the years since then, he notes, the number of NIW petitions has skyrocketed. In 2022, NIW petitions accounted for 26 percent of the applications filed, and in the last quarter of 2022 and first quarter of 2023, 46 percent of all filings were NIWs. “That’s nearly half of all the applications,” Colombo observes.

    He also notes this trend continued in Q2 and Q3 of this year. “In the third quarter alone, over 10,000 NIW petitions were filed!” he says. “That’s just a massive number. What we’re seeing here is a true sea change in how highly skilled people are seeking US visas.” 

    Why NIWs are gaining popularity

    Why are NIWs becoming so prominent? Colombo lists several reasons.

    “First of all, the PERM process keeps getting harder,” he says. “To get a PERM petition approved, employers must show they advertised the job to US workers, and no qualified Americans were available. This evidence needs to withstand the scrutiny of the Department of Labor, which has become heightened in recent years. The Department’s adjudications have also been highly variable and inconsistent, which makes an already-challenging process even more challenging.”

    Meanwhile, Colombo describes the NIW process as “far more flexible.” “In my experience, completing an NIW application can also be much faster than one for PERM,” he says.

    Another reason Colombo gives for the popularity of NIW applications is the Biden Administration’s desire to attract and retain top talent who work in STEM fields. “New guidance prioritizes people with advanced degrees in these coveted disciplines,” he says. “The USCIS’s updated policy manual recognizes that startups and other efforts to advance technology can have worldwide implications. In particular, if the applicant’s proposed endeavor could boost US competitiveness or national security, this is looked upon positively.”

    According to Colombo, the Biden Administration’s new guidance isn’t just empty talk – the relevant authorities have actually been putting it into practice. “Looking at the USCIS’s adjudications, they are prioritizing STEM fields in accordance with the new policies,” he says.

    NIW petitioners are the icons of the future

    According to Colombo, this increase in NIW applications is good news for the US. “When American companies bring foreign nationals to the US as employees, it’s good for them because they meet their needs to fill specific roles,” he says. “But when top scientists, engineers, and other people with advanced degrees choose to come to the US, it has a national impact. These are the talented individuals who are developing critical technologies and shaping the future. Their efforts will spur continued economic growth and job creation in the US.”

    History bears out Colombo’s statement. Just consider this partial list of previous immigrants to the US whose work has changed the world forever: Albert Einstein, Nikola Tesla, Sergey Brin, and Enrico Fermi.

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