In an effort to improve our immigration system for highly skilled STEM workers, the Biden Administration recently announced several immigration policies that are designed to make it easier for STEM workers to qualify for O-1 nonimmigrant and NIW immigrant visas.
USCIS Guidance for O-1 Petitions Focusing on STEM
USCIS’s January 21, 2022, policy guidance on the O-1A “extraordinary ability” visa category offers additional clarity for meeting the regulatory criteria for O-1A applicants within STEM fields. For instance, to satisfy the “receipt of internationally or nationally recognized prizes or awards for excellence in the field of endeavor” criterion, beneficiaries in STEM fields can submit evidence of scholastic awards, such as PhD scholarships or dissertation awards, and include information about the criteria used to grant the award/prize, the national or international significance of the award/prize in the field, the number of awardees or prize recipients, etc. Furthermore, the new guidance also reiterates USCIS’s acceptance of comparable evidence when a particular O-1A criterion is not easily applicable to a specific occupation. For example, if a beneficiary does not have evidence of published scholarly articles in journals or other major media, because the beneficiary’s field of endeavor is in an industry rather than academia, USCIS will consider the beneficiary’s presentations at major conferences or a major trade show as sufficient comparable evidence.
USCIS Updates Guidelines for STEM NIWs
Considering the importance of STEM fields in the U.S. economy, USCIS has provided additional guidance on the assessment of STEM applicants applying for National Interest Waivers (NIWs).
USCIS will still require applicants to meet the requirements set forth in the seminal case, Matter of Dhanasar, but the agency will consider other factors specific to STEM fields. For example, officers are advised to review a list of critical and emerging technology subfields, such as the list provided by the National Science and Technology Council, to identify if the proposed field is a critical and emerging technology field. After reviewing such list and all the other evidence submitted, the officer can determine if the particular STEM area is important to U.S. national interests.
For the first prong set forth in Dhanasar, the evidence must show that a STEM field has both substantial merit and national importance. The guidance recognizes that fields that aim to advance STEM technologies and research typically have substantial merit in connection to U.S. science and technology.
As for the second prong set forth in Dhanasar – well-positioned to advance the proposed endeavor – USCIS will give considerable weight to petitions where the applicant’s advanced degree (particularly a PhD) in the STEM field is tied to the proposed endeavor and the applicant’s work to advance a critical and emerging technology or other related STEM field is important to U.S. competitiveness or national security. However, evidence of an advanced degree alone is not a basis to satisfy the second prong. Evidence of the applicant’s education should be corroborated with other documentary evidence, such as letters of support from the applicant’s field, and when applicable, letters from interested government agencies or quasi-governmental entities. In fact, USCIS specifically mentions such letters, which, presumably, will be particularly persuasive. Thus, applicants are encouraged to include letters from interested government agencies or quasi-governmental entities in their petitions.
With respect to the third prong, the applicant bears the burden to demonstrate that factors in favor of granting the NIW outweigh those that support the requirement of a job offer through a labor certification. Here, USCIS will consider: (1) the applicant’s advanced STEM degree (especially a PhD); (2) the applicant’s ability to engage in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and (3) whether the applicant is well-positioned to advance the proposed STEM field of national importance. USCIS will give considerable weight to the petition if the endeavor can potentially support U.S. national security or advance U.S. economic competitiveness.
Twenty-two Additional Fields Qualify for STEM F-1 OPT
As of January 21, 22 additional fields of study qualify for STEM Optional Practical Training (OPT). OPT allows foreign nationals in F-1 status, with employers enrolled in the E-Verify system, to apply for two additional years of practical training/work authorization. Foreign nationals in F-1 status in nonqualifying fields are granted only one year of OPT when they complete their degree program. The following are the 22 additional fields of study:
The addition of these additional fields complies with this administration’s objective towards a more welcoming immigration system.
Initiatives to Increase J-1 Exchange Visitors Involved in Academic Scholarship
The Administration also issued an initiative on January 24, 2022, aiming to increase the STEM-focused educational and cultural exchange visitors. It provides that J-1 undergraduate and pre-doctoral students will be eligible for a 36-month extension of post-graduate academic training to gain practical experience related to their degree, up from the typical 18 months allotted. The extension will apply to the current and the 2022–2023 academic years.
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