Biden Administration Announces New Policy to Attract and Retain Immigrants in STEM

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The Biden administration announced a series of administrative changes designed to strengthen the nation’s ability to attract global talent. The changes are also designed to strengthen our economy and technological competitiveness and benefit working people and communities across the country. This bulletin will highlight some of the key changes affecting employers and foreign nationals.

New STEM OPT Categories

The changes expand the definition of Optional Practical Training (OPT) in STEM fields, which will allow a greater number of students to be eligible for STEM OPT.

OPT, a work permit available to certain F–1 nonimmigrant students, allows students to obtain real-world work experience directly related to their field of study. The STEM OPT extends to 24 months the OPT permit available to F–1 nonimmigrant students who have completed 12 months of OPT and received a degree in an approved STEM field of study.

The Biden administration has added 22 new categories of academic programs that qualify for STEM OPT extension, including programs in bioenergy, forestry, cloud computing, economics of computer science, business analytics, and financial analytics. A complete list can be found here: Federal Register :: Update to the Department of Homeland Security STEM Designated Degree Program List

The expansion of the STEM OPT definition will give employers and foreign nationals additional opportunities to enter the H-1B lottery, which can ultimately lead to lawful permanent residency.

Guidance on Immigrants with “Extraordinary Ability” in STEM fields

In addition, the Biden administration, provided much-needed guidance on the type of evidence that can satisfy the eligibility requirements for foreign nationals in STEM fields seeking an “extraordinary ability” visa (O-1A category). The Biden administration provided this guidance in the form of a new appendix to its policy manual for adjudicators at the United States Citizenship and Immigration Services (USCIS). The full text of the new appendix can be found here: https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4.

The appendix confirms some USCIS practices known to experts in the field, but also provides new revelations. For example, USCIS revealed that an award open to members of “a well-known national institution, such as an R1 or R2 doctoral university” could qualify has a nationally recognized prize.  Before this guidance, USCIS did not make clear that the R1 or R2 designations from the Carnegie Classification of Institutions of Higher Education was a relevant factor in determining whether an award is nationally recognized.

The new appendix also provides guidance on the criterion for “membership in associations…which require outstanding achievements of their members.” The new appendix lists organizations that meet this criterion, such as Institute of Electrical and Electronics Engineers (IEEE) and Association for the Advancement of Artificial Intelligence (AAA). These associations specifically mention on their websites that membership requires significant accomplishments in their respective fields, as judged by a panel. With this guidance, foreign nationals, employers and their attorneys can expect that other organizations with similar language on their websites will also satisfy this criterion. By contrast, organizations that merely require a particular level of education or the payment of a fee or subscription do not qualify.

One criterion for granting the O-1A visa that has often vexed immigration attorneys is “published material…about the beneficiary.” The guidance clarifies USCIS’ position that “published material that includes only a brief citation or passing reference to the beneficiary’s work is not ‘about’ the beneficiary.” The beneficiary and his or her work need not be the only subject of the published material, but there must be a “substantial discussion.” When an applicant is part of a team, the material must mention the beneficiary and establish the beneficiary’s significant role in the work or research.

In the category of “original scientific, scholarly or business-related contributions of major significance in the field,” USCIS confirmed that proving “the beneficiary’s work was funded, patented, or published” is not enough by itself to establish “major significance.” Work that has “provoked widespread commentary” or is “highly cited relative to other works in that field,” however, will establish “major significance.”

Overall, the new guidance provides a useful standard that employers and foreign nationals can use to gauge eligibility for the O-1A category. The new guidance should also result in greater predictability and consistency in adjudications in the O-1A category.

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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