Since announcing his first bid for the White House in 2015, President Trump has used issues surrounding immigration in the United States to rally his base – making immigration one of the most hot-button issues in U.S. politics and civil discourse today. Although many of the headlines during both his terms in office have been focused on enforcement actions and cracking down on illegal immigration, his policymakers have also worked to limit legal pathways to status in the United States. Recent changes have focused on limiting or ending humanitarian programs like Temporary Protected Status (TPS) and placing drastic limitations on international students in the United States.
Amidst all of these attention-grabbing changes, there have also been quieter shifts in adjudications of employment-based immigration benefits that affect foreign national employees sponsored by their US employers for permanent residency via the traditional PERM labor certification, many of whom continue to face long processing delays. In this climate, EB-1A Extraordinary Ability and EB-2 National Interest Waiver (NIW) petitions continue to be attractive options for these highly-skilled immigrants. This is particularly true for skilled workers in STEM fields, where the United States has long expressed a continuing national interest in retaining talent. However, as with every facet of the U.S. immigration system today, there have been changes that should be considered when strategizing what type of case to pursue and how to present credentials to U.S. Citizenship and Immigration Services (USCIS).
As a foundation, EB-1A classification provides a path to U.S. permanent residency (also known as a green card) for individuals who are in the small percentage at the very top of their fields. The EB-2 NIW is a more flexible category that provides a path to a green card if the applicant’s work is deemed to be of substantial merit and is in the national interest. Both categories can be supported by a U.S. employer, but also allow an individual to self-sponsor, offering a path that is independent of a specific job offer. Individuals seeking permanent residency with or without an employer sponsor must be prepared to heavily document their achievements.
To understand how a STEM focus influences a tailored immigration strategy, it is important to consider how adjudications of STEM EB-1s and NIWs have evolved in recent years. In early 2022, USCIS under the Biden Administration issued policy guidance that introduced significant updates to NIW adjudications, including prioritizing individuals with advanced STEM degrees for NIW classification. This prioritization was particularly important for applicants with STEM PhDs and those focused on critical and emerging technologies (CET). The emphasis on STEM talent retention was later extended to USCIS guidance for other highly skilled classifications, including EB-1A petitions. Later, in 2023, the Biden Administration issued an extensive Executive Order (EO) on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI), which included directives to modernize immigration pathways for international STEM talent in AI and CET fields. Following these developments, publicly available data showed that the volume of NIW filings submitted to USCIS rose significantly as foreign workers in STEM fields pivoted to this strategy in the face of long PERM delays and an unstable tech economy. However, even before the Biden Administration ended, additional changes were made to NIW policy guidance that have had an impact on recent adjudication trends under the Trump Administration.
On January 15, 2025, USCIS policy guidance regarding NIW adjudications was updated to clarify how the agency reviews certain elements of an NIW benefit request, including the evaluation of whether the proposed endeavor has national importance. By way of background, an NIW may be granted if the petitioner establishes that: (1) the proposed endeavor has substantial merit and national importance; (2) the individual is well positioned to advance the proposed endeavor; and (3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and labor certification. In updating its policy guidance regarding the “national importance” component of this assessment, USCIS included examples of what types of endeavors may or may not be considered to meet this requirement. On the positive side, the agency highlighted that drug development on behalf of a pharmaceutical company may have national importance because of the prospective public health benefits; while on the restrictive side, software engineering work adapting an employer’s code for various clients may not have national importance, as the benefit is limited to one employer.
Upon President Trump’s return to office, he immediately rescinded the Biden-era EO on AI, leading to uncertainty regarding how NIW and EB-1 filings in STEM fields, including work in the areas of AI and other CET, would be viewed under the new administration. However, the STEM prioritization built into USCIS policy guidance for NIW, EB-1, and O-1 filings so far remains largely undisturbed.
Policy changes have not been without effect, however. Following the January 15th updates to the NIW Policy Guidance, recent trends in USCIS adjudications suggest increased scrutiny of the “national importance” of an applicant’s proposed work in the United States, no matter the sector. Although the evolution of policy guidance in the EB-1A extraordinary ability category has not been as black and white as for the NIW, a successful EB-1A applicant must also demonstrate that his or her work “will substantially benefit prospectively the United States.” Therefore, highly skilled foreign workers considering either of these benefits should pay particular attention to articulating the importance of their work and its reach, leveraging federal resources – such as the July 2025 White House publication America’s AI Action Plan – where possible, to demonstrate the national interest inherent to their work. Applicants whose work may be considered more localized in impact, including high-level engineers, educators, and even some physicians, may want to consider if their qualifications are sufficient to satisfy the higher standard associated with EB-1A classification rather than pursue an NIW.
Individuals considering EB-1A or NIW filings should also consider the level of discretion afforded to USCIS adjudicators in reviewing benefit applications. Although subjectivity plays a role in many immigration benefit decisions, USCIS’s recent guidance on the role of “Anti-Americanism” highlights the discretionary analysis in national interest waiver adjudications, setting this category apart from other employment-based immigrant visa petitions. Applicants pursuing an NIW should therefore also consider how a discretionary analysis may factor into the adjudication of their case in the current climate.
Overall, despite the restrictive posture of immigration policy under the current administration, with careful planning and strategy, the EB-1A and NIW categories remain powerful tools for the United States to retain highly desirable STEM talent and maintain the U.S. advantage in advancing emerging technologies.
The material contained in this article 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.
Reprinted with permission from the August 19, 2025 edition of The Legal Intelligencer© 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
