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The once-dominant labor certification (PERM) process, long considered the gold standard for securing an EB-2 visa, is on its deathbed. Yes, you read that right: PERM for EB-2 is dead. What’s taking its place? The National Interest Waiver (NIW) category, which is exploding in popularity at an accelerating rate. It’s a seismic shift that many in the established immigration legal community have failed to notice or properly prepare for – but the future is here.

In 2017, USCIS approved 66,904 EB-2 I-140 Petitions. Of those, just 5439 (or about 8%) were approved through the National Interest Waiver (NIW) Category. The remaining 92% were approved after completing the labor certification (PERM) process. Over the last several years, for a number of factors, the percentage of NIW Petitions relative to PERM Petitions has increased culminating in just over a 26% NIW rate as of the full fiscal year 2022.

However, recent USCIS statistics show an even more remarkable trend. Through Q4 of ’22 and Q1 of ’23 19,302 of 41,714 EB-2 Petitions were NIWs – a stunning 46% of filings.  That’s nearly half of all filings, a true sea change that represents a significant shift in the way that highly skilled workers are seeking employment-based visas in the United States and one that is likely to continue to accelerate.

Several factors contribute to this change. First, the EB-2 PERM process is becoming increasingly difficult and time-consuming. PERM involves the complex and time-consuming process of advertising the job opportunity to U.S. workers and demonstrating that no qualified U.S. workers are available for the position. In recent years, the Department of Labor has also increased scrutiny and provided highly inconsistent adjudications during the PERM process, making it even more difficult for employers to navigate.

Second, the NIW process is more flexible and can be a faster option for obtaining a green card. The NIW process is designed for individuals who can demonstrate that their proposed endeavor is in the national interest of the United States. Unlike the PERM process, the NIW process does not require a job offer from a U.S. employer or a showing that no qualified U.S. workers are available. Instead, applicants must show that their endeavor is in field of substantial intrinsic merit and that the benefit of their work is national in scope. The NIW process can be far more flexible and can often be completed far more quickly than the PERM process, making it an attractive option.

Third, and perhaps most importantly, The Biden Administration’s goals to attract and retain foreign nationals in STEM fields (and the ensuing USCIS policy change reflecting this) has changed the landscape of NIW adjudications in a manner not seen since the Dhanasar decision. Specifically, new USCIS guidance emphasizes the substantial weight that advanced degrees in critical and emerging STEM fields hold under all three prongs Dhanasar. The guidance indicates that endeavors to advance STEM technologies not only have substantial merit in relation to U.S. science and technology interests, but also have sufficiently broad potential implications to demonstrate national importance. USCIS also considers advanced STEM degrees tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security as an especially positive factor. It is evident from USCIS’s adjudications since updating its policy manual in the Summer of 2022 that they are implementing the Biden Administration’s goals for STEM fields.

The EB-2 NIW process is quickly replacing the traditional EB-2 PERM process, and for good reason. While PERM may benefit US employers, the NIW has a greater collective national impact. PERM often focuses on meeting specific hiring needs, whereas the NIW encourages highly skilled foreign nationals to stay in the US and advance critical and emerging technologies and other STEM fields. This benefits the US economy and national security in the long run. By granting the NIW, USCIS recognizes that these individuals will contribute to the US as a whole, rather than just a single employer. They may possess unique skills and expertise not readily available in the US, and their contributions can lead to new innovations and discoveries, ultimately benefiting society and leading to economic growth and job creation.

The EB-2 process has reached a turning point, and the NIW is the game-changing solution. It’s time for the immigration legal community to recognize the immense potential of this innovative approach and take full advantage of this seismic shift.

Rusten Hurd

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