Immigration shortfalls solved now.

The 2022 guidance doesn’t alter those limits on employment-based green cards but clarifies the visa process for foreign-born scientists pending any significant changes to the 1990 law. The O-1A work visa, which can be renewed indefinitely, was designed to accelerate the path to a green card for foreign-born high-tech entrepreneurs. For example, Sanjay, who had been working in the U.S. for a decade, was awarded an O-1A visa in the first week of 2022, shortly before the revised USCIS guidance was issued.

Although there is no cap on the number of O-1A visas awarded, foreign-born scientists have largely ignored this option because it wasn’t clear what metrics USCIS would use to assess their application. The 2022 guidance on O-1As removed that uncertainty by listing eight criteria—including awards, peer-reviewed publications, and reviewing the work of other scientists—and stipulating that applicants need to satisfy at least three of them.

The second visa policy change affects those with advanced STEM degrees seeking the national interest waiver for an EB-2. Under the normal process of obtaining such a visa, the Department of Labor requires employers to first satisfy rules meant to protect U.S. workers from foreign competition, for example, by showing that the company has failed to find a qualified domestic worker and that the job will pay the prevailing wage. That time-consuming exercise can be waived if visa applicants can prove they are doing “exceptional” work of “substantial merit and national importance.”

But once again, the standard for determining whether the labor-force requirements can be waived was vague, so relatively few STEM workers chose that route. The 2022 USCIS guidance not only specifies criteria, which closely track those for the nonimmigrant, O-1A visa, but also allows scientists to sponsor themselves.