Hiring Highly Qualified Foreign Workers Might Get Much Harder

US Citizenship and Immigration Services’ new policy guidance suggests the agency will place more scrutiny on national interest waivers. In response, employers may need to provide more thorough documentation and justification for NIW petitions—and consider alternatives if employees can’t meet the tightened standards.

USCIS released guidance on Jan. 15 providing additional context for employers seeking to sponsor foreign nationals for permanent residence under a special provision of US immigration law known as employment-based national interest waivers. The update applies to new petitions, as well as retroactively to petitions that were pending as of Jan. 15.

In recent years, USCIS has seen a significant increase in NIW petitions filed—the number of filed NIWs almost doubled in fiscal year 2023 relative to fiscal year 2022.

The likely reason for this dramatic increase is that the NIW can be a much quicker green card process compared with the more common program electronic review management process. The PERM process requires the employer to place a labor market test and obtain a permanent labor certification from the Department of Labor, which takes approximately two to three years. The NIW applicant is exempt from this requirement and can immediately file a petition to join the green card waiting line.

The NIW requires the employee to have either an advanced degree or exceptional ability in the sciences, arts, or business. The applicant also must meet a three-prong test adopted by USCIS following the precedent NIW case, Matter of Dhanasar. The petition must demonstrate:

• the applicant’s proposed endeavor has substantial merit and national importance
• the applicant is well-positioned to advance the proposed endeavor
• on balance, it is beneficial to the US to waive the job offer and labor certification requirements, which are designed to ensure employers must first try to hire qualified US workers before bringing in foreign workers to fill a position

The latest policy guidance tightens the standards for NIWs in several ways, which could make it more difficult for employers to sponsor their employees for green cards under this category.

Most consequentially for employers, the guidance goes into several types of national importance arguments that aren’t acceptable. Notably, it won’t suffice to argue that an applicant’s work has national importance because it will benefit an employer with a national footprint, its clients, or its bottom line.

Employers instead will want to focus on showing the projected public benefits of the applicant’s future work. For instance, an applicant developing a drug for a pharmaceutical company should highlight its projected public health benefits, not projected profits.

What about work that doesn’t have obvious public benefits, say, for health or safety? That may be an uphill battle under the new guidance. The NIW update warns that a software engineer adapting their employer’s code for various clients will have difficulty demonstrating the national importance of that endeavor, absent additional broader impacts supported by specific evidence.

In such cases, employers will want to show broader implications for a field or region. USCIS has set a very high bar for this. According to the agency, if an applicant is developing new technology, broader implications can include “widespread interest in adoption or licensing” of the technology.

This is a tall order in practice. If the technology is new or still under development, how much widespread interest can there be? Depending on the employer’s industry, these broader implications can become difficult to substantiate.

The NIW guidance also downgrades the evidentiary weight of recommendation letters, business plans, and similar descriptions of the applicant’s future plans. Each will now need to be supported by “other independent evidence” to show the applicant is well-positioned to advance the endeavor.

This may prove a considerable obstacle, particularly for applicants who don’t have a record of public-facing contributions to their field of endeavor or other evidence of public recognition for their achievements. Although teamwork is important in business, the new guidance suggests that applicants who collaborate with others as part of a team or department will need to prove their individual contribution to a project is essential.

In addition, officers will now crack down on NIW filings lacking a clear connection between the field of the applicant’s advanced degree or exceptional ability and the field of their proposed endeavor. USCIS also will weed out NIW filings where the applicant’s occupation doesn’t require at least a bachelor’s degree-level education.

Under these stricter standards, employers can expect an increase in requests for evidence, which can delay the overall processing time by months, creating uncertainty for employers and employees.

Employers should still file NIWs for ostensibly eligible employees. The new guidance is just that—new. Employers should discuss with their immigration counsel how to prepare NIW petitions that proactively address the concerns in USCIS’ guidance. This can mean having a clear, well-documented explanation for how the employee’s past career is specifically and directly tied to their field of endeavor and their proposed work in the US.

But the rules of the game have changed, and if a certain employee doesn’t have strong evidence under each of the three prongs, employers should consider alternatives. Applicants probably won’t score any home runs by “swinging for the fences” with NIWs any time soon.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Christina Haines is a senior managing attorney at Erickson Immigration Group, advising individuals and corporate clients in the technology, entertainment, and health-care industries.

Emily Callan is a managing attorney at Erickson Immigration Group, representing companies and individuals seeking immigration assistance.

Ricardo Abend is a senior attorney at Erickson Immigration Group, representing clients on petitions for national interest waivers in various fields.

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