Attracting and Retaining Foreign Talent in STEM Fields – Overview of STEM Initiatives

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On July 28, 2022, USCIS published online resources to provide an overview of some temporary and permanent pathways for foreign nationals to remain in the United States (U.S.) and work in the sciences, technology, engineering, and mathematics (STEM). These online resources break down various non-immigrant and immigrant channels through which STEM professionals can seek temporary or permanent employment in the U.S. There are no specific policy changes connected with these resources, but the dedication of a resource page specifically to STEM professionals is symbolic of the agency’s commitment to attracting and retaining foreign talent in STEM fields.

Over the past year, the Biden-Harris Administration has taken several steps to affirm its commitment to attracting and retaining foreign talent in STEM fields. The power of policy initiatives cannot be understated in the immigration context, and the actions taken by the Biden-Harris Administration provide welcome opportunity and clarity to employers, foreign nationals, and entrepreneurs seeking to advance STEM fields and remain in the U.S.

On January 21, 2022, the Administration released a Fact Sheet that declared:

In the fields of science, technology, engineering, and mathematics (STEM) – fields that are critical to the prosperity, security, and health of our Nation – our history is filled with examples of how America’s ability to attract global talent has spurred path-breaking innovation. This innovation has led to the creation of new jobs, new industries, and new opportunities for Americans across the United States. Our commitment as a nation to welcoming new talent has long provided America with a global competitive advantage, and we must continue to lead in this effort.

The Fact Sheet outlined the concerted efforts being coordinated across multiple government agencies to increase opportunities for study and work in STEM fields and to provide predictability as to adjudications in certain non-immigrant and immigrant categories.

On the same day, the Department of State (DOS) issued a statement announcing “additional measures to further our support for increasing the flow of talent in science, technology, engineering and math (STEM) to benefit American communities.”  These measures include additional opportunities for STEM-focused education and cultural exchange through the J-1 program, and an extension for undergraduate and graduate students in STEM fields on a J-1 visa, allowing additional academic training for up to 36 months. In concert, the Department of Homeland Security (DHS) issued a statement announcing 22 new fields eligible for STEM optional practical training (OPT). This program permits graduates of certain STEM fields to remain in the U.S. for up to 36 months to work in their field of study. The DHS statement also announced updates to the policy manual of U.S. Citizenship and Immigration Services (USCIS), a centralized repository of USCIS adjudication policies, for O-1 extraordinary ability petitions and national interest waiver petitions. The policy guidance does not change existing law, but rather clarifies how evidence is evaluated and weighed, particularly regarding STEM fields.

Then on March 23, 2022, USCIS updated its policy manual to clarify certain evidentiary criteria in the extraordinary ability and outstanding researcher immigrant categories. While not explicitly related to STEM fields, these updates are noteworthy because many STEM applicants utilize these categories when seeking permanent residency.

Next, on July 22, 2022, USCIS announced another update to its O-1 adjudications policy, clarifying that being named on a competitive government grant for STEM research can positively demonstrate that a beneficiary is at the top of their field. This is a significant addition because of how O-1 petitions are evaluated. First, an adjudicator conducts a review to determine whether certain evidentiary criteria are met,  followed by a review and summary of the record to assess whether the individual has demonstrated extraordinary ability through sustained national or international acclaim. Because government grants are issued based on a proposed research endeavor, USCIS seems to be acknowledging that the prospective impact of the individual’s research – rather than past accomplishments – should be considered a positive factor in determining whether someone has reached the top of his field.

STEM developments over the past eight months can be summarized as follows:

  • 22 Additional Fields Designed for STEM F-1 OPT Extension Eligibility
    • The STEM OPT program permits F-1 students earning Bachelor’s, Master’s, and Doctoral degrees in specific STEM fields to remain in the U.S. for up to 36 months to complete Optional Practical Training after earning their degrees.
    • The added fields of study are primarily new multidisciplinary or emerging fields, which the Administration claims are critical in attracting talent to support U.S. economic growth and technological competitiveness.
    • Examples include bioenergy, business analytics, data science, data analytics, climate science, cloud computing, and industrial and organizational psychology, among others. A complete list of eligible STEM fields can be found here.
  • Extension of Academic Pre-Doctoral STEM Academic Training from 18 to 36 Months for J-1 University Students
    • This rule extends eligibility for up to 36 months of academic training to undergraduate and pre-doctoral degree-seeking J-1 College and University students in STEM fields, the same amount that J-1 post-doctoral students currently have in any field.
    • Students eligible for this special STEM academic training extension are eligible only for up to 36 months of authorization or the period of the full course of study in the United States, whichever is less. BridgeUSA gives the following example in its FAQs: “Exchange visitors in one-year programs are only eligible for one year of academic training, two-year university programs are eligible for two years of academic training, and four-year programs are eligible for the maximum three years of academic training.”
    • This is a temporary initiative, limited to the 2021-2022 and 2022-2023 school years.
  • STEM-Specific Guidance Added for O-1 Extraordinary Ability Petitions
    • Policy highlights include:
      • Examples of evidence that may satisfy the O-1A evidentiary criteria and considerations that are relevant to evaluating such evidence, with a focus on the highly technical nature of STEM fields and the complexity of the evidence often submitted.
      • Emphasis that if a petitioner demonstrates that a particular criterion does not readily apply to their occupation, they may submit evidence that is of comparable significance to that criterion to establish sustained acclaim and recognition. It provides examples of possible comparable evidence that may be submitted in support of petitions for beneficiaries working in STEM fields.
      • Explanation that when evaluating whether an individual of extraordinary ability is coming to work in their “area of extraordinary ability,” officers will focus on whether the prospective work involves skillsets, knowledge, or expertise shared with the occupation(s) in which the individual garnered acclaim.
      • Clarification that being named on a competitive government grant for STEM research can be a positive factor toward demonstrating that a beneficiary is at the top of their field. This evidence is added to the listed examples of evidence that may be submitted to show that an applicant has extraordinary ability in the STEM fields.
    • STEM-Specific Guidance Added for National Interest Waiver (NIW) Petitions
      • Policy highlights include:
        • Explains adjudicatory framework for national interest waiver requests under Matter of Dhanasar, including special considerations for endeavors in STEM fields, as well as the significance of letters from governmental and quasi-governmental entities.
        • Special focus is provided for “critical and emerging technologies” and areas that are “important to competitiveness or security.” The definition of “U.S. national security” is also addressed in this context. Importantly, specific publications that extensively explore these concepts are cited to assist both applicants and examiners in determining if the criteria are met.
        • Clarifies that a Ph.D. should be weighed heavily in favor of the applicant in determining whether they are well positioned to advance the field of endeavor.
        • Letters from government agencies or “quasi-governmental entities” supporting NIW petitions should also be given weight in the decision-making process.
        • Expands on the discussion in Matter of Dhanasar, recognizing that entrepreneurship provides unique circumstances inapplicable to other areas and explaining how the Dhanasar framework can apply to entrepreneurs.
        • Incorporates Matter of O-A, Inc., explaining that USCIS considers the date of a provisional degree certificate to calculate post-baccalaureate experience.
      • Guidance Added for Extraordinary Ability and Outstanding Professor or Researcher Immigrant Visa Classifications
        • Policy highlights include:
          • Clarifies that for the extraordinary ability and outstanding professor or researcher classifications, “published material” about the person (or the person’s work in the case of an outstanding professor or researcher) in professional or major trade publications or other major media need not be a printed article; rather, a petitioner may submit more varied forms of evidence including a transcript of audio or video coverage.
          • Clarifies that, in the extraordinary ability classification, a person may satisfy the leading or critical role criterion through a qualifying role for a distinguished department or division in addition to an entire organization or establishment.

Taken as a whole, these actions suggest that the door for STEM professionals – once closed only to be opened with a lock and key – may now be propped open. The majority of these changes over the past eight months have merely been the provision of clarifying guidance, as opposed to major policy or regulatory changes. Still, the guidance provides greater predictability and clarity to highly subjective non-immigrant and immigrant visa pathways. These developments suggest a greater willingness to weigh STEM achievements and potential more heavily in performing various subjective immigration law analyses. The actual effect of this guidance will have to be gleaned over the course of time, but for now, there appears to be a shift toward a more welcoming immigration environment for STEM professionals and their employers, as well as entrepreneurs in STEM industries.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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