High-skilled foreign workers are increasingly pursuing long-term permanent residency in the United States without company sponsorship due to long wait times for employment-based green cards. Recent guidance from the Department of Homeland Security has highlighted pathways for workers with “extraordinary ability” and those whose work benefits the national interest. However, delays in labor certification processes and concerns about potential changes in administration are driving many to self-petition for more challenging green card categories, according to attorneys.
Tess Douglas, an attorney at DGO Legal, explained, “It means having some way to control your immigration journey where a lot of it feels out of your control.”
Data from the U.S. Citizenship and Immigration Services shows that petitions for EB-1 visas, which are designated for workers with extraordinary ability and outstanding researchers, rose 75% over the past four fiscal years, exceeding 37,000 in 2023. In the first three quarters of this fiscal year alone, nearly 30,000 petitions were submitted.
EB-1 recipients come from diverse fields, including science, music, athletics, and fashion design. Senior engineers and product designers at major companies like Meta, Amazon, LinkedIn, and Google are increasingly pursuing these visas, according to Sameer Khedekar, founder of Vanguard Visa Law PC.
Obtaining permanent residency allows foreign workers to change jobs freely, leading to increased income and productivity. Some employers support their workers in pursuing self-petition options because these provide more certainty regarding the long-term status of key employees.
Ali Brodie, an immigration attorney at Fox Rothschild LLP, noted that both attorneys and workers are becoming more knowledgeable about green card categories that do not require employer sponsorship. These include the EB-1 and EB-2 visas with a “national interest waiver,” which are becoming more appealing due to lengthy wait times for Labor Department certifications required for traditional green card applications. Brodie stated, “The backlogs are tremendous, so many people are trying this as another option in their green card toolkit.”
Processing Delays
When employers sponsor foreign workers for green cards, they must navigate a process called PERM, which demonstrates that no qualified American workers are available for the positions. However, this Labor Department process, which is supposed to take weeks, has recently extended to over a year, jeopardizing the immigration status of many foreign workers and delaying permanent residency for others.
Additionally, major tech firms have paused new PERM certifications amid multiple rounds of layoffs, freezing opportunities for employer-sponsored green cards for the rest of the year. Opting for self-petition green card options allows workers to bypass the PERM process entirely.
Indian and Chinese workers are particularly interested in these self-petition options due to significant backlogs for employer-sponsored green cards. Visa caps for specific countries mean that demand often exceeds availability. However, many of these workers have spent considerable time in the U.S. on temporary visas, making them more likely to meet the criteria for the most stringent visa categories. According to the Cato Institute, approximately 1.1 million Indians are currently in the employment-based green card backlog, with many facing long waits for eligibility.
Khedekar remarked, “They are becoming extraordinary and meeting the requirements of these visa classifications just by virtue of being forced to work for so long in the U.S.”
For applicants, the key question is the impact of their work in their field. Immigration attorney Karin Wolman asked, “Are you doing work that everyone in your field will know about? Why does your work impact the work of others?”
Election Concerns
Many workers feel pressure to advance their green card applications before the end of the Biden administration, fearing that a Trump presidency could worsen wait times. While the number of employment-based green cards is set by law, a Trump administration is expected to apply stricter scrutiny to petitions.
Labor certifications at the Department of Labor moved more quickly during Trump’s first term. In contrast, the Biden administration has faced a higher volume of applications due to increased demand for foreign talent, according to Cecilia Esterline, an immigration research analyst at the Niskanen Center, a think tank advocating for immigration reform.
Esterline noted, “We know it’s likely processing times will increase across the board at DOL, USCIS, and the State Department. We don’t have strong indications that reducing processing times is a priority for the next administration.”
Self-petitioning also involves subjective decisions from adjudicating officers, which can be a disadvantage compared to the H-1B visa lottery system. Attorneys hope that recent clarifications from USCIS will lead to more consistent outcomes.
Guidance released in 2022 regarding national interest waivers and temporary O-1 visas for extraordinary workers led to a surge in petitions from individuals in STEM fields. More recent guidance on extraordinary ability green cards could provide better clarity for practitioners and applicants in these areas. However, many believe that these changes may not significantly increase approval rates.
Khedekar commented, “Unfortunately, in my experience, when USCIS releases this kind of guidance, it often reflects what they’ve been doing all along.”
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