Nearly one year ago to the date, I wrote in my blog post that the “the path to qualifying in [for the O-1A visa classification] is far from transparent.” At that time, I noted that the request for evidence (“RFE”) rate was on an upward swing in this temporary, non-immigrant visa classification. Today, we are pleased to discuss the Biden Administration’s recent steps to increase clarity and predictability for foreign nationals seeking this classification, with a focus upon those in STEM fields, i.e., science, technology, engineering, and mathematics, seeking employment in the U.S.
On January 21, 2022, the Biden Administration announced various new initiatives to support STEM students and graduates in the U.S. These include increasing the number of STEM-focused J-1 programs overseen by the Department of State (“DOS”), extending the academic training period for undergraduate and graduate students in STEM fields in J-1 programs for 36 months, adding 22 qualifying degree fields to the list included in the STEM Optional Practical Training (“OPT”) program, and revising the United States Citizenship and Immigration Services (“USCIS”) policy manual to clarify the adjudication standards for the O-1A and National Interest Waiver (“NIW”) classifications. Before delving into the changes to the O-1A standards, it is worth mentioning that the administration notably omitted key healthcare fields, including nursing, from the list of qualifying degree fields for the OPT program.
The examples of qualifying evidence the USCIS enumerated in an appendix to the O-1A section provide much needed clarity and facilitate the application of the O-1A criteria to STEM entrepreneurs. For instance, under the awards criterion, the USCIS will now accept an award available only to persons within a single well-known national university, even though generally institutional awards do not qualify. In an example of evidence for the published material criterion, the agency clarifies that “officers may consider material that focuses solely or primarily on work or research being undertaken by a team of which the beneficiary is a member, provided that … other evidence in the record documents the beneficiary’s significant role in the work or research.” This is a significant change from requests for evidence issued in the context of petitions on behalf of physicians, researchers, and other foreign nationals with extraordinary ability that have strongly suggested qualifying published material must mention the beneficiary by name.
Finally, the agency also provides examples of qualifying comparable evidence that petitioners could provide in support of a petition for a beneficiary in a STEM field. For example, while an academic may be able to easily satisfy the criteria regarding the publication of scholarly articles, an entrepreneur may not be able to. In such a case, the agency suggests that “a petitioner might demonstrate that the beneficiary’s presentation of work at a major trade show is of comparable significance” to the scholarly articles criterion. The agency also expressly recognizes that the CEO of a startup may not be able to demonstrate the receipt of a high salary, and as such ought to be able to satisfy this criterion by presenting evidence of “the beneficiary’s highly valued equity holdings in the startup.”
These announcements are a welcome and significant step towards strengthening the economy and retaining key talent in the U.S. We hope these policy updates 1) increase the predictability of O-1 petitions and 2) allow a greater pool of foreign talent in STEM fields to obtain this coveted classification. The O-1 nonimmigrant classification ought to be explored by foreign nationals and their prospective employers, especially for candidates in the sciences, education, business, or athletics who are not selected in the upcoming H-1B lottery.
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