New Biden Executive Order Establishes New Critical and Emerging Technologies and Priorities for EB-2 National Interest Waivers

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:

• Communication and Networking Technologies
• Semiconductors and Microelectronics
• Artificial Intelligence and Machine Learning
• Biotechnology
  • This includes anything that could affect the health, agricultural and industrial sectors which will need to be used to securely support the health of our country
• Positioning, Navigation and Timing Services
  • This includes the electrical power grids, emergency response, weather forecasting and other communication infrastructure
• Digital Identify Infrastructure
• Clean Energy Generation and Storage
• Quantum Information Technologies
  • This leverages quantum mechanics for the storage, transmission and computing with major national security and economic implications

The following fields have been designated as departments and agencies that will benefit the United States’ global economy and national security:

• Automated and Connected Infrastructure
• Biobanking
  • This includes the collection, storage and use of biological samples
• Automated, Connected and Electrified Transportation
  • May include electric vehicles, and setting standards to integrate EV’s with the electrical grid
• Critical Mineral Supply Chains
  • Supporting increased sustainable extraction of critical minerals necessary to manufacture renewable energy, EV’s and semiconductors
• Cybersecurity and Privacy
• Carbon Capture, Removal, Utilization and Storage
  • Work on building evolving CO2 storage, and point source carbon capture

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:

• The proposed endeavor has substantial merit and national importance;
• You (the petitioner) are well positioned to advance the proposed endeavor; and
• On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus the labor certification.

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.