LawFlash

Biden-Harris Administration Announces Policy Changes to Assist Foreign Nationals in STEM Fields

January 25, 2022

In an effort to attract global talent to strengthen the economy, the Biden-Harris administration recently announced several immigration policy expansions geared towards students in Science, Technology, Engineering, and Mathematics (STEM) academic fields. The policy changes also affect nonimmigrant visa categories, such as J-1 exchange visitors and O-1 nonimmigrant visa holders who demonstrate extraordinary ability in STEM academic fields, as well as afford additional provisions for those seeking lawful permanent residency under the National Interest Waiver program.

F-1 and J-1 Nonimmigrant Visas

F-1 students who hold qualifying STEM degrees are allowed to apply for a STEM optional practical training (OPT) extension of up to 24 months of additional OPT work authorization, subject to academic training requirements. This program was previously limited to a set list of degrees. That list has now been expanded meaningfully in terms of the types of fields considered to be STEM fields. Included among the 22 newly added fields are the following:

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.


Additionally, J-1 exchange visitor program undergraduate and predoctoral students in STEM fields are now eligible for up to 36 months of OPT work authorization. This was previously capped at 18 months. The State Department’s Bureau of Educational and Cultural Affairs (ECA) is also launching an Early Career STEM Research Initiative to further facilitate efforts to attract J-1 exchange visitors to engage in STEM research through exchange visitor programs in the United States.

O-1 Nonimmigrant Visas for Foreign Nationals with Extraordinary Ability in STEM Academic Fields

In light of this policy expansion, US Citizenship and Immigration Services (USCIS) also released a policy update which details changes to its policy manual for the evaluation of evidence submitted in support of O-1A petitions for beneficiaries in STEM fields. This includes a chart describing examples of evidence that may satisfy O-1A evidentiary criteria and considerations taken by an adjudicating officer in evaluating the evidence. The changes also detail examples of comparable evidence that employers can provide in support of an O-1A petition or a beneficiary in a STEM field.

The guidance further addresses the requirement that all O-1 beneficiaries coming to the United States must continue to work in their “area of extraordinary ability or achievement,” and in particular explains that when evaluating whether a beneficiary of extraordinary ability is coming to work in the beneficiary’s area of extraordinary ability, adjudicating officers will focus on whether the prospective work involves skillsets, knowledge, or expertise shared with the occupation(s) in which the beneficiary garnered acclaim.

National Interest Waivers and Employment-Based Permanent Residence

The announcement also includes changes related to adjudications for foreign nationals applying for employment-based permanent residence under a National Interest Waiver for Advanced Degree Professionals or Persons of Exceptional Ability. The updated USCIS policy manual guidance further instructs on how USCIS officers should review petitions from foreign nationals who are STEM graduates and entrepreneurs, and clarifies the significance of letters from governmental and quasi-governmental entities, all of which ultimately impacts the adjudication of a petition.

In evaluating these types of petitions, the policy manual notes that beneficiaries with a Ph.D. in a STEM field, as well as certain other persons with advanced STEM degrees relating to the proposed endeavor, have scientific knowledge in a narrow STEM area since doctoral dissertations and some master’s theses concentrate on a particularized subject matter. Adjudicating officers should consider whether that specific STEM area relates to the proposed endeavor.

The policy manual also addresses the role of an interested government agency or quasi-governmental entity in these types of petitions. A petitioner may submit any relevant evidence, including letters from interested government agencies to show how the person is well positioned to advance the proposed endeavor. Letters from interested government agencies or quasi-governmental entities in the United States (for example, federally-funded research and development centers) can be helpful evidence in demonstrating that the government agency has expertise in the proposed endeavor and that the proposed STEM endeavor promises to advance a critical and emerging technology or is otherwise important for purposes of maintaining the United States’ technological prominence, which is an important evidentiary consideration.

These policy expansions provide greater benefits to foreign students and exchange visitors studying in STEM academic fields, which will likely bring more stability to US employers and host organizations who are able to retain these key individuals for a greater period of time.

Contacts

If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

Miami
Laura C. Garvin

San Francisco
A. James Vázquez-Azpiri
Christina M. Gonzaga

Washington, DC
Eric S. Bord
Shannon A. Donnelly
Eleanor Pelta