On January 21, 2022, the Department of State and the Department of Homeland Security jointly announced a flurry of new actions and policy changes relating to various visa classifications that open new potential pathways and expand on existing policy guidance for individuals who are studying/have studied or are working in the fields of Science, Technology, Engineering, and Mathematics (STEM). The motivation behind these actions is “to advance predictability and clarity for pathways for international STEM scholars, students, researchers, and experts to contribute to innovation and job creation efforts across America.”
These announcements include the following:
- The Department of State announced an “Early Career STEM Research Initiative” that will allow exchange visitors to come to the U.S. on J-1 visas to engage in STEM research, training, or educational exchange visitor programs, as well as new guidance that will facilitate additional academic training for undergraduate and graduate students in STEM fields on J-1 visas.
- Over twenty new fields of study will be added to the list of fields that would qualify for the STEM Optional Practical Training program, which allows F-1 students to obtain employment authorization in the United States for up to three years following completion of their degree program, as compared to only one year for students with degrees in a non-STEM field.
- The USCIS Policy Manual has been updated to clarify how the agency determines eligibility for individuals seeking O-1A visa classification as having “extraordinary ability” in the fields of science, business, education, or athletics, with particular emphasis on individuals who hold a Ph.D. in a STEM field.
- Similarly, the USCIS Policy Manual has also been updated to clarify how a “National Interest Waiver” can be used for individuals with advanced degrees in STEM fields.
With respect to O-1 petitions, the USCIS Policy Manual now offers helpful examples of the types of evidence that may, in some circumstances, satisfy the O-1A evidentiary requirements for individuals in STEM fields, giving practitioners, petitioners, and beneficiaries useful guidance on the types of documentation that may hold particularly significant weight with USCIS officers reviewing such petitions.
With respect to National Interest Waiver petitions, the changes to the USCIS Policy Manual appear to go even further than the modifications for O-1s above, seemingly offering significant evidentiary weight to an applicant’s education and/or experience in a STEM field when evaluating whether the individual’s work falls within the “national interests” of the U.S. and whether the individual is well-positioned to advance the proposed endeavor in the United States.
By way of background, the National Interest Waiver is a category of immigrant visa (permanent resident, or “green card”) that permits an individual of exceptional ability or with an advanced degree to seek a waiver of the typical requirement that there be a job offer from a U.S. employer in order to petition for permanent resident status based on employment. Those who qualify for a National Interest Waiver are able to petition for themselves, without a job offer and/or without an employer’s involvement. This category therefore serves as a useful tool for individuals seeking permanent resident status who do not have a formal job offer from a U.S. employer and/or whose employer is not willing to participate in a “green card” process.
Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability or an advanced degree, and whose work/employment in the United States would greatly benefit the nation in the area of business, science, health care, economy, national security, or another important area. As there is no statutory or regulatory definition of the term “national interest”, USCIS relies on a relatively recent Administrative Appeals Office precedent decision setting forth a three-prong test for evaluating requests for a national interest waiver. See Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).
According to Dhanasar, to be eligible for an NIW, the requestor must demonstrate:
- They plan on working in the United States in an area of substantial intrinsic merit and/or national importance;
- They are well positioned to advance their proposed endeavor in the United States; and
- On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.
While petitioners have always been able to argue that working in a STEM field falls within the “national interests” of the United States, the recent changes to the USCIS Policy Manual more clearly enumerate how petitioners in STEM fields should be evaluated and, as a whole, these changes appear to be highly favorable to individuals in STEM fields. For example, as set forth in the Policy Manual, USCIS officers are now expressly instructed as follows when evaluating NIW petitions:
- “USCIS recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.”
- “Officers may find that a STEM area is important to competitiveness or security in a variety of circumstances, for example, when the evidence in the record demonstrates that an endeavor will help the United States to remain ahead of strategic competitors or current and potential adversaries, or relates to a field, including those that are research and development-intensive industries, where appropriate activity and investment, both early and later in the development cycle, may contribute to the United States achieving or maintaining technology leadership or peer status among allies and partners.”
- “USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence for purposes of the assessment under the second prong.”
- “When evaluating the third prong and whether the United States may benefit from the person’s entry, regardless of whether other U.S. workers are available (as well as other factors relating to prong three discussed above, such as urgency), USCIS considers the following combination of facts contained in the record to be a strong positive factor:
- The person possesses an advanced STEM degree, particularly a Ph.D.;
- The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
- The person is well positioned to advance the proposed STEM endeavor of national importance.
The benefit is especially weighty where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is supported by letters from interested U.S. government agencies.”
While ultimately the true impact of these changes will be in how this new guidance is actually applied by USCIS officers in the field, the overall tenor of these modifications suggests that the path to an NIW may be a bit smoother for individuals with education, training, or expertise in a STEM field, and the added language above in the USCIS Policy Manual offers NIW requestors some persuasive arguments to make in NIW petitions going forward.
If you have questions about the O-1 visa classification, the National Interest Waiver, or other green card options for yourself or your employees, contact the Harris Beach immigration team to discuss the options that may be available to you. Our Immigration Law Practice Group includes immigration attorneys that work across New York State in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that companies are able to hire, transfer, and retain the brightest and best non-U.S. talent.