• Matthew Kolodziej

Can you benefit from Biden's STEM policy changes announced last Friday?


On January 21, 2022, the Biden Administration announced policy changes to expand visa options and availability for foreign nationals working and studying in the STEM (Science, Technology, Engineering, and Mathematics) fields to expand visa availability for STEM professionals to attract technical workers and talent to the USA. Through these changes the Biden Administration seeks to champion and emphasize America’s position as a global talent hub and center of technological innovation by attracting additional STEM professionals to the United States through broadening the availability of current common STEM visas and work permits (i.e. STEM Optional Practical Training for F-1 & J-1 student visa holders) and encouraging the use of other visas and green cards that are currently underutilized but available to STEM professionals (i.e. O-1A Extraordinary ability in technology/science visas & National Interest Waiver Green cards).


Specifically, the Department of State and Homeland Security have announced the following actions:


F-1 & J-1 Student Work Permit Expansion: DHS has announced 22 new fields will be included in the STEM OPT (Optional Practical Training) Extension work permit program. OPT is a work permit program available to F-1 students who have completed their studies and wish to gain relevant work experience in their field while in the United States. STEM OPT is an extension of this program which allows students with degrees in specific STEM fields to extend their OPT an additional 24 months beyond the 12-month validity provided by OPT. DHS has expanded eligibility for the STEM OPT Extension to students who have attained degrees in: Bioenergy; Forestry, General; Forest Resources Production and Management; Human Centered Technology Design; Cloud Computing; Anthrozoology; Climate Science; Earth Systems Science; Economics and Computer Science; Environmental Geosciences; Geobiology; Geography and Environmental Studies; Mathematical Economics; Mathematics and Atmospheric/Oceanic Science; Data Science, General; Data Analytics, General; Business Analytics; Data Visualization; Financial Analytics; Data Analytics, Other; Industrial and Organizational Psychology; Social Sciences, Research Methodology and Quantitative Methods[1]. F-1 Students in these fields are now eligible for a total of 36 months of OPT before they will need to acquire a new visa or depart the United States.


Similarly, new guidance from the Department of State regarding J-1 undergraduate and Pre-Doctoral students in STEM Fields, and those who have recently completed studies in such fields, extends their maximum eligibility for optional practical training (OPT) for J-1 STEM students to 36 months, up from the previous maximum of 18 months. DOS has also announced the “Early Career STEM Research Initiative,” a STEM specific initiative designed to facilitate and streamline connecting STEM Professionals with US programs to engage in STEM research, training, or educational exchange.


These changes not only simplify foreign national students’ ability to transition from their studies to employment, but also facilitates employers’ long term planning as the extended OPT validities provide more time to work with and assess these employees as well as more opportunities to enter them in the H-1B lottery and therefore increases the likelihood of transitioning straight from OPT to H-1B (or potentially O-1A as discussed below) without a break in employment caused by the Foreign National’s need to depart the USA.


O-1A Extraordinary Ability Work Visas: USCIS has issued a Policy Guidance focusing on the STEM context including detailed discussion of acceptable comparable evidence for O-1A applications and the final “Totality of the circumstances” analysis in order to emphasize and expand the use of the O-1A as a viable visa for STEM professionals. The Policy Guidance examines the O-1A eligibility criteria (e.g. membership in associations in the field, judging the work of others in the field, original contributions of major significance, etc.) providing specific examples and analysis of the criteria as it applies to professionals in STEM fields in order to provide clarify and simplify the application process for STEM professionals[2]. Furthermore, beyond clarifying, this guidance provides a clear signal that USCIS under the Biden administration encourages qualified STEM Professionals to pursue O-1 visas in lieu of more typical alternatives such as the H-1B. Employers seeking to hire established and accomplished STEM professional employees should strongly consider the O-1A alternative as it provides several advantages over H-1b including no required wage or hours & no cap on the number extensions (i.e. the employer may extend and continue to employ the STEM professional under an O-1 indefinitely, as opposed to the 6 year cap on H-1Bs.).


National Interest Waiver Green Cards: USCIS has also announced changes to the Policy manual relating to National Interest Waiver Green cards to encourage use by STEM Professionals. Typically, individuals with exceptional ability or members of the professions with an advanced degree who seek permanent residence and citizenship must be sponsored by an employer with a specific job offer ensuring they will continue to work in their field in the United States. However, under certain circumstances, applicants may receive a “National Interest Waiver” exempting the job offer requirement allowing the applicant to immediately operate their own company or take the time to find employment after coming to the United States.


In order to qualify for a National Interest Waiver, the applicant must meet three prongs:

  • The person’s proposed endeavor has both substantial merit and national importance;

  • The person is well positioned to advance the proposed endeavor; and

  • On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

If an applicant can demonstrate they meet each prong, the job offer requirement is waived.


USCIS has elaborated on qualifying for a National Interest Waivers in the STEM context. In particular, USCIS explicitly:

  • recognizes the importance of competitiveness in STEM fields highlighting progress in critical and emerging technology fields (as listed by the Executive Office of the President, by either the National Science and Technology Council or the National Security Council[3]) as being likely to have both substantial merit and national importance to meet the first prong,

  • “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”[4], and

  • notes the combination of possessing such an advanced degree, plans to work in a critical and emerging technology or other STEM area, and being well positioned to advanced such technology or STEM area is a “strong positive factor” in favor of meeting the third criteria.

All together this indicates USCIS is particularly open to granting National Interest Waivers for accomplished STEM Professionals including those who seek to establish their own companies and those who wish to work when and how they please (provided they will in fact work in and advance their STEM field).


The Biden-Harris Administration’s policy changes provide numerous avenues to expand both the total number of visas available to STEM students and professionals and extends the lifetime of those visas. STEM employers and professionals should consider these changes thoughtfully to capitalize on the flexibility provided. JLG can help you analyze these policy changes to identify new, better solutions to continue to attract STEM talent or facilitate your work in the United States. Please feel free to reach out to us for more information.


[1] Please see https://www.ice.gov/doclib/sevis/pdf/stemList2022.pdf for a full list of STEM OPT Extension eligible fields.

[2] Please see https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4 incorporating the Guidance and https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4 providing specific examples of qualifying & non-qualifying evidence for each O-1A eligibility criteria.

[3] Please see https://trumpwhitehouse.archives.gov/wp-content/uploads/2020/10/National-Strategy-for-CET.pdf for a resent example of such a list.

[4] Please see the relevant section of USCIS Policy Manual at https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5


 

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