On October 30, 2023, the Biden Administration issued an executive order ordering the federal government to “use existing authorities to expand the ability of highly skilled immigrants and nonimmigrants with expertise in critical areas to study, stay, and work in the United States by modernizing and streamlining visa criteria, interviews, and reviews. “Specifically, the order instructs the Secretary of Homeland Security to “review and initiate any policy changes the Secretary determines necessary and appropriate to clarify and modernize immigration pathways for experts in AI and other critical and emerging technologies, including O-1A and EB-1 noncitizens of extraordinary ability; EB-2 advanced-degree holders and noncitizens of exceptional ability; and startup founders in AI and other critical and emerging technologies using the International Entrepreneur Rule.” The order enumerates specifically which critical and emerging technologies have been prioritized by the Biden administration.
The following fields have been deemed essential for US competitiveness and national security:
The following fields have been designated as departments and agencies that will benefit the United States’ global economy and national security:
What is a National Interest Waiver (NIW)?
A National Interest Waiver (NIW) allows an individual or company to pursue an EB-2 green card process without the need to first go through the lengthy labor certification (PERM) process. Instead, the individual must establish that they meet EB-2 eligibility by having either an advanced degree or exceptional ability. Then, the individual must prove that the labor certification (PERM) process should be waived because it is in the interest of the United States to do so. USCIS determines whether the labor certification can be waived if the following 3 criteria are met:
Do I need an employer to file the NIW petition for me?
Technically, an individual is eligible to self-petition under the NIW category. As such, you do not need an employer sponsor. Having an employer, however, is beneficial in certain circumstances. It is necessary to have evidence of job offers or proof that you are continuing to work in your proposed endeavor if you do not have an employer and decide to self-petition. Furthermore, the executive order makes clear that entrepreneurs and smaller companies are eligible for NIW because the Biden administration seeks to “harness the benefits of AI to provide new opportunities for small businesses, worker and entrepreneurs.”
I currently work in one of the areas mentioned, what should I do?
If you currently work in one of the areas listed and you believe that your work will benefit the United States and you need a green card, then please feel free to reach out to our firm so that one of the employment-based attorneys for a consultation.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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