Episode 62: Why national interest waivers are increasingly common

It’s Feb. 22, and this is your BAL Immigration Report.

• President Biden moves to allow certain Palestinians to stay in the U.S.
• Premium processing fees are about to go up.
• Why national interest waivers are increasingly common in the green card process.

“We are in an immigration environment right now that reviews NIW petitions favorably for certain types of roles and individuals with certain backgrounds. So there are no drawbacks to throwing your hat in the ring and embracing this diversified green card pathway as an alternate solution to PERM.”

—Nazish Ali, BAL Senior Associate

U.S. news

Deferred removal of Palestinians

President Joe Biden signed a memorandum last week that defers the removal of certain Palestinians currently living in the U.S. for 18 months. Biden said the move was prompted by deteriorating conditions in the Palestinian territories, primarily Gaza, following Israel’s response to Hamas’ Oct. 7 attack.

U.S. Citizenship and Immigration Services said it would soon provide additional information about the implementation of the memorandum, including how eligible individuals may apply for employment authorization documents.

Premium processing fees increasing

Premium processing fees are about to go up. U.S. Citizenship and Immigration Services announced the fee increases in December, saying they were imposed to account for inflation. The new fees will take effect Feb. 26. Most premium processing fees will increase by about 12%. These increases are unrelated to the more substantial immigration filing fee increases that are set to take effect April 1.
U.S. news roundup

• The U.S. Embassy in France urged Americans traveling to Paris for the Summer Olympics to check their passports and renew them now if necessary.
• The Department of Labor posted updated H-2A and H-2B processing times.
• A reminder that BAL’s government strategies team is hosting a webinar on Feb. 28 on the recently published H-1B and fee regulations. For more information, look for the link in our show notes or visit com/events.

Spotlight

Conversation with BAL Senior Associates Nazish Ali and Storm Estep: EB-2 national interest waivers as a green card strategy.

BAL Immigration Report: National interest waivers, or NIWs, have become increasingly common as permanent labor certification, or PERM, has become more difficult. NIWs allow applicants to bypass PERM if the individual in question meets certain requirements. In order to be eligible, individuals must meet EB-2 requirements by having an advanced degree (a master’s degree or higher), or a bachelor’s degree plus five years of progressive post-baccalaureate experience, or by demonstrating exceptional ability in the sciences, arts or business.

NIW applicants must also satisfy each prong of a three-part test by showing: 1) that the proposed endeavor or employment has both substantial merit and national importance, 2) that the individual is well-positioned to advance that endeavor, and 3) it would be beneficial to the United States to waive the requirements of a job offer and thus a labor certification. BAL Senior Associates Storm Estep and Nazish Ali joined us from BAL’s headquarters in Dallas, Texas, to discuss the trend. We opened by asking Estep why NIWs are becoming more common relative to PERM.

Estep: NIWs are becoming increasingly more common, especially for tech companies, and this has mostly to do with recent government changes in policy where the United States is prioritizing advanced STEM degree professionals who are advancing critical and emerging technologies. And so these are areas like AI, machine learning, data, cybersecurity, things like that, biotech, semiconductors, microelectronics and everything within the U.S., which is leading to favorable adjudication for the NIWs. PERM applications at the same time are becoming increasingly difficult because of current economic conditions in the U.S., things like all the tech layoffs that are happening that are throwing a wrench in a lot of the PERM recruitment that’s happening, leading to failed labor market tests. Those combinations of two things are making NIWs seem like just a better option for everyone.

BAL: We asked Ali to describe similarities and differences between NIWs and PERM.

Ali: Both the national interest waiver and PERM cases are viable paths to a green card. Both of them may qualify under the employment-based second preference category. But the key differences here involve the steps that are involved through the application process as it relates to the green card path. The PERM process is a multistep process and requires a test of the U.S. labor market to determine if there are any qualified, willing and available U.S. workers. And if there are any qualified, willing and available U.S. workers, the process ends.

These steps are very mechanical and are governed very closely by the U.S. Department of Labor. It is also a very time-consuming process, and it could take up to two years before being able to progress to the I-140, which is the second step of the green card process. The NIW green card process bypasses the labor market test, and as such, the concern of qualified U.S. workers is moot. Additionally, because the NIW does not involve a PERM process, there’s also no concern related to the DOJ and DOL’s enforcement actions. Because there is no labor market test, we are able to move straight to the I-140 immigrant visa petition, which is filed and governed by USCIS. The other benefit here is that premium processing is now an available option, so you could receive a decision on this petition within 45 days.

BAL: Ali says some NIW cases are stronger than others, but she and Estep both say that the Biden administration has made commitments to enhance U.S. competitiveness, in part through supporting the NIW process. The administration updated the USCIS policy manual to provide clearer guidance on NIW considerations for adjudication, especially for advanced STEM degree holders advancing critical and emerging technologies. The White House has continued to expand its list of critical and emerging technologies. Last week, it published an updated list that covers 18 technology subject areas, including artificial intelligence, biotechnologies, green energy generation and storage, and space technologies and systems. None of this is set in stone, however.

Estep: What we currently know is the current administration is supportive of this idea of allowing for advanced degree STEM professionals who are engaged with critical and emerging technologies and will be advancing those technologies to have a pathway forward with NIW favorable at NIW adjudication. That is this administration, though. And so, given that this is an election year, if another situation comes in, this could all change. Just to that end, striking while the iron is hot I think is a good way of thinking about where teams should move forward with this, like if they’re mobility teams thinking about their immigration programs, if they have folks who are engaged in technologies like AI and machine learning, cybersecurity, biotech, semiconductors, microelectronics, etc., they’re quite a lot of these. Anyone who’s engaged with that should be considering NIWs as part of their green card strategies for their employees.

BAL: We asked Ali whether some employers are hesitant to shift from PERM to NIWs.

Ali: Overall, most employers seem to be hesitant only because of a lack of familiarity with the process. It’s something new, it’s something different, it’s uncharted waters for them. PERM has historically been the most popular pathway for employment-based green cards for many, many years. Individuals may experience that little sense of nervousness also when they hear phrases such as “national interest” or “substantial merit” or “national importance.” But that really should not deter employers or employees from moving through the national interest waiver process. As Storm mentioned, we are in an immigration environment right now that reviews NIW petitions favorably for certain types of roles and individuals with certain backgrounds. So there are no drawbacks to throwing your hat in the ring and embracing this diversified green card pathway as an alternate solution to PERM.

BAL: Estep and Ali will host a BAL Community event on national interest waiver filings on March 13. They will discuss incorporating NIW as an immigration strategy, identifying eligible applicants, and documentation and risks. For more information, look for the link in our show notes or visit community.BAL.com.

Global news

U.K. extends Ukrainian visas

The United Kingdom will allow Ukrainians who came to the U.K. following the Russian invasion to apply for 18-month extensions of their visas. The BBC reports that more than 200,000 Ukrainians and family members have come to the U.K. since 2022. Most were granted three-year visas, meaning some of those visas would have expired in March 2025.

The U.K. is one of several countries to extend such protections to Ukrainians. In a statement, the U.K. Home Office said the extensions would provide certainty and reassurance to Ukrainians in the U.K.

Visa-free travel between China and Thailand

A new visa-free travel agreement between China and Thailand is set to take effect March 1. Officials from the two countries signed the agreement at a ceremony in Bangkok in late January.

China has entered visa-free travel arrangements with several countries in recent months, including Malaysia and Singapore. Reuters reported this week that Chinese travel to hot spots throughout Asia increased this Lunar New Year, with travel to some destinations exceeding pre-COVID levels.

Global news roundup

• Poland announced plans to update its immigration strategy for 2025 to 2030.
• The Philippines waived medical clearance requirements for some visa applicants.
• Iceland increased the amount of funds required to show means of support for residents, permit and citizenship applicants.

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