Foreign Workers’ Pursuit of ‘Extraordinary’ Visa Options Grows

High-skilled foreign workers faced with mounting wait times for employment-based green cards are pursuing long-term permanent residency in the US without a company sponsoring them.

Recent guidance from the Department of Homeland Security has highlighted pathways to green cards for workers with “extraordinary ability” or those making contributions in the national interest. However, delays in clearing labor certification hurdles and anxieties over a change in administration are also fueling attempts by many workers to self-petition for tougher green card categories, attorneys say.

“It means having some way to control your immigration journey where a lot of it feels out of your control,” said Tess Douglas, an attorney at DGO Legal.

Total immigrant worker petitions submitted for EB-1 visas for workers with extraordinary ability and outstanding researchers—the toughest green card category—rose 75% in the past four fiscal years, topping 37,000 in 2023, according to data published by US Citizenship and Immigration Services. In the first three quarters of this fiscal year, petitions submitted nearly topped 30,000.

The professions of EB-1 recipients can span the gamut from scientists and musicians to athletes and fashion designers. The visas are increasingly being pursued by senior level engineers and product designers at companies like Meta Platforms Inc., Amazon.com Inc., LinkedIn and Google parent Alphabet Inc., said Sameer Khedekar, founder and managing attorney at Vanguard Visa Law PC.

Securing permanent residency offers foreign-born workers the ability to change jobs without restriction, leading to higher incomes and productivity. Some employers themselves are supporting workers pursuing self-petition options because they offer more certainty on the long-term status of key workers, attorneys say.

Attorneys and workers are becoming better-educated about green card categories that don’t require employer sponsorship, said Ali Brodie, an immigration attorney at Fox Rothschild LLP. Those include the EB-1 and the EB-2 visa with a “national interest waiver” for workers whose employment would have a broad impact. Those options are becoming more attractive thanks to wait times to secure a Labor Department certification for more typical green card applications, Brodie said.

“The backlogs are tremendous so this is something that I think a lot of people are trying—rightfully so—as another option in their green card toolkit,” she said.

Processing Delays

When employers sponsor foreign workers for green cards—whether they’re already in the US on temporary visas or relocating from abroad—they must clear a process known as PERM to show that no qualified American workers are available for those positions. But a Labor Department clearance process designed to take weeks has begun to drag on for well over a year, putting the long-term immigration status of many foreign workers at risk and delaying permanent residency for others.

Big tech firms have also hit pause on new PERM certifications in recent years as they’ve undertaken multiple rounds of layoffs, meaning the opportunity for an employer-sponsored green card is frozen for the remainder of the year. Pursuing one of the self-petition green card options would allow them to bypass the PERM process entirely.

Indian and Chinese workers are interested in those options because they face especially large backlogs for employer-sponsored green cards. That’s because caps on visas available for a given country mean green card availability can’t keep up with demand by workers.

But the length of time many have spent working in the US on temporary visas may make them more likely to meet criteria of the most stringent visa categories, Khedekar said. About 1.1 million Indians are stuck in the employment-based green card backlog and hundreds of thousands will likely die waiting to become eligible for permanent residency, according to the Cato Institute.

“They are becoming extraordinary and meeting the requirements of these visa classifications just by virtue of being forced to work for so long in the US,” Khedekar said.

The question for applicants is how influential their work is in a given field, said immigration attorney Karin Wolman.

“Are you doing work that everyone in your field will know about?” she said. “Why does your work impact the work of others?”

Election Worries

Many workers have also felt pressure to make progress on the green card process before the end of the Biden administration because of fears over how a Trump presidency could further affect wait times, attorneys said. Although the number of employment-based green cards is set by statute, a Trump White House is expected to apply tougher scrutiny to petitions.

Labor certifications at DOL moved faster under the first Trump administration, but the Biden administration has dealt with a much higher volume of applications thanks to greater demand for foreign talent, said Cecilia Esterline, immigration research analyst at the Niskanen Center, a think tank that advocates for issues including immigration reform.

“We know it’s likely processing times will increase across the board at DOL, USCIS, and the State Department,” she said. “We don’t have a strong indication from anything on the campaign trail that says reducing processing times is a priority of the next administration.”

Counting on a subjective decision from an adjudicating offer—rather than a visa lottery in the case of H-1Bs—is a potential drawback of pursuing self-petition options. Attorneys hope that recent clarifications from USCIS lead to more consistency from adjudicating officers.

Guidance released in 2022 on national interest waivers and temporary O-1 nonimmigrant visas for extraordinary workers led to a spike in petitions from workers in science, technology, engineering, and mathematics fields. More recent guidance issued last month on extraordinary ability green cards could give practitioners and applicants “a better understanding in at least the STEM area of who might qualify,” Brodie said.

But many say it’s unlikely to significantly move the needle in terms of new approvals.

“Unfortunately, in my experience when USCIS releases this kind of guidance, it really reflects what they’ve been doing all along anyways,” Khedekar said.