Biden Administration Actions to Attract STEM Talent
On January 21, 2022, the White House released a statement summarizing immigration related efforts to attract and retain foreign national scholars, students, researchers, and experts in science, technology, engineering and mathematics (STEM) in order to strengthen U.S. competitiveness. As part of this initiative, several updates were announced by the U.S. Department of State (DOS) and the U.S. Department of Homeland Security (DHS). Below is the summary of the initiatives.
A. Academic Training Extension for J-1 Students in STEM Fields
The DOS’s Bureau of Educational and Cultural Affairs (ECA) announced the launch of the new program “Early Career STEM Research Initiative .” This initiative allows BridgeUSA J-1 visitors coming to the U.S. to engage in STEM research through research, training or educational exchange programs with host organizations, including businesses. In addition, ECA also provided guidance that will allow eligible undergraduate and graduate J-1 students in STEM fields to obtain training for up to 36 months. The current training period is 18 months, but with this new guidance, eligible J-1s can seek an extension.
B. DHS Adding 22 Qualifying Field of Study to the STEM Designated Degree Program List
With regard to F-1 students, DHS announced 22 new fields of study that are now to be included in the STEM Optional Practical Training (OPT) program through the Student and Exchange Visitor Program (SEVP). The STEM OPT extension allows students in only certain STEM fields to remain in the U.S. for up to 36 months to complete their OPT after earning their degrees. The new fields that will be added to this list of acceptable fields of study will be announced in the Federal Register. We will release this information once it is available.
C. National Interest Waivers
USCIS issued a policy alert regarding changes to adjudication guidelines for National Interest Waiver EB-2 (or “NIW”) petitions for advanced degree professionals or persons of exceptional ability. The goal is to clarify how the NIW can be used by science, technology, engineering and mathematics (“STEM”) graduates and entrepreneurs. It also clarifies the significance of letters from governmental and quasi-governmental entities. The specific highlights according to USCIS are as follows:
It explains the adjudicatory framework for national interest waiver requests under Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), including special considerations for endeavors in STEM fields, as well as the significance of letters from governmental and quasi-governmental entities.
It expands on the discussion in Dhanasar to explain how the framework can apply to entrepreneurs.
It incorporates Matter of O-A, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017) to explain that USCIS considers the date of a provisional degree certificate for purposes of calculating post-baccalaureate experience.
D. Updated Policy Manual on O-1 Visa
USCIS issued policy alert about its policy guidance related to “extraordinary ability” (O-1A) nonimmigrant status on evidentiary criteria. The policy guidance clarifies how USCIS will evaluate evidence to determine eligibility for O-1 visa “with a focus on persons in science, technology, engineering, or mathematics (STEM) fields” and how USICS will determine whether an O-1 beneficiary’s prospective work is within the beneficiary’s area of extraordinary ability or achievement. Below are the policy highlights:
Adding a chart in an appendix describing examples of evidence that may satisfy the O-1A evidentiary criteria, as well as considerations that are relevant to evaluating such evidence (with a focus on evidence and considerations that are relevant to STEM fields).
Providing examples of qualifying comparable evidence that petitioners could provide in support of a petition for a beneficiary in a STEM field.
Clarifying how USCIS officers evaluate the totality of the evidence to determine O-1A eligibility and provides examples of positive factors that officers may consider.
Explaining that when evaluating whether a beneficiary of extraordinary ability is coming to work in the beneficiary’s “area of extraordinary ability,” officers focus on whether the prospective work involves skillsets, knowledge, or expertise shared with the occupation(s) in which the beneficiary garnered acclaim.
Clarifying that for a beneficiary with a record of extraordinary achievement in MPTV productions, USCIS interprets the beneficiary’s “area of extraordinary achievement” to include any proposed work within the MPTV industry.
USCIS Updates Guidance for Expedite Requests
On January 25, 2022, USCIS announced an update to its Policy Manual to clarify how it currently treats expedite requests. The new guidance is effective immediately. The update:
Clarifies the criteria and circumstances under which we generally consider expedite requests from nonprofit organizations as determined by the Internal Revenue Service;
Provides additional examples of when we may consider expedite requests made by federal, state, or local agencies, including labor and employment agencies;
Adds examples to further illustrate how the expedite criteria relates to emergencies and urgent humanitarian reasons; and
Explains that some circumstances may affect or delay our ability to expedite an application or petition.
Nonprofit organizations can request expedition in furtherance of the cultural or social interests in the United States. USCIS stresses that nonprofits should be specific about “the beneficiary’s specific role within the nonprofit furthering cultural or social interests (as opposed to the organization’s role in furthering social or cultural interests).” USCIS also pointed out that the request should focus on “why the respective beneficiary is specifically needed, as opposed to pointing to a general shortage alone.”
The new guidance clarifies that government agencies requesting expedition must discuss how expedition will further “public safety or national security interests” that are “immediate and substantive.” USCIS stresses that the request must be made by a “senior-level official” of the government agency, and that the need for the worker is “mission-critical and goes beyond the general need to retain a particular worker or person.”
USCIS added examples of what types of “emergency or urgent humanitarian reasons” are acceptable, such as “illness, disability, extreme living conditions, death in the family, or a critical need to travel to obtain medical treatment in a limited amount of time.”
Finally, USCIS explained certain circumstances that may affect or delay its ability to efficiently adjudicate an expedite request, such as (i) where an application or petition “requires on-site inspection, or (ii) where “the benefit is ancillary to a primary application or petition that is still pending.” In the latter scenario, USCIS recommends filing the expedite request on the primary application (such as the Application to Extend/Change Nonimmigrant Status [Form I-539] or the Petition for Nonimmigrant Worker [Form I-129]) as opposed to pursuing expedition on the ancillary application (such as the Application for Employment Authorization [Form I-765]).
USCIS Guidance on Transferring the Underlying Basis of Form I-485 Application to a Different Employment-Based Immigration Category
On January 21, 2022, USCIS provided guidance on its website regarding the detailed process for transferring the underlying basis of Form I-485 to a different employment-based immigration category to another Form I-140 within the first three employment based category (EB-1, EB-2 and EB-3). Below is the highlight of the transfer request guidance:
Eligibility to request the transfer if:
a. The applicant has continuously maintained eligibility for adjustment of status;
b. The adjustment of status application based on the original Form I-140 is still pending;
c. The applicant is eligible for the new immigrant category; and
d. The applicant has a visa immediately available in the new immigrant category.
The request to transfer a pending I-485 from one category to another category must be made in writing , with Form I-485J (if required).
The request need to be made no later than September 30, 2022 to the following address:
U.S. Department of Homeland Security USCIS Western Forms Center 10 Application Way Montclair, CA 91763-1350
The priority date must be current for the category the applicant wishes to use under the Final Action Chart of the Visa Bulletin of the given month.
USCIS specifies that if the applicant already submitted the transfer request to USCIS prior to the issuance of the new guidance, the applicant should not submit a new request again to the new address. The applicant will not expect to receive a written response to transfer request. However, USCIS will issue receipt notices for I-485 Supplement J.
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