On January 21, 2022, the White House released a fact sheet entitled “Biden-Harris Administration Actions to Attract STEM Talent and Strengthen our Economy and Competitiveness,” announcing several immigration-related policy changes related to foreign nationals possessing Science Technology Engineering and Mathematics (STEM) degrees. U.S. Citizenship and Immigration Services (USCIS) then swiftly updated its Policy Manual to reflect these policy changes, providing private and public employers with significant opportunities to attract and retain top-tier STEM talent in business-critical positions.
The new policies: 1) expand what degree programs are eligible for STEM Optional Practical Training (OPT); 2) update the USCIS Policy Manual as it relates to the adjudication of petitions for O-1A (extraordinary ability) visas; 3) update the USCIS Policy Manual to reflect additional national interest waivers for STEM degree holders and entrepreneurs to secure a green card in the United States; 4) facilitate additional corporate training for J-1 visa holders in STEM fields; and 5) create an early career STEM Research Initiative.
Expansion of STEM OPT Fields of Study
Along with the White House announcement, the Department of Homeland Security (DHS) published a Federal Register Notice adding 22 qualifying fields of study to the STEM Designated Degree Program list.
Foreign students who obtain a degree in a qualifying STEM field are eligible for a 24-month extension of their post-completion optional practical training (OPT), which is normally 12 months. Thus, foreign nationals who earn a qualifying STEM degree will be eligible for a total of 36 months of practical work experience so long as their employer establishes, in a training plan, the relationship between their degree fields and their employment.
What fields of study were added to the STEM OPT program?
Many of the degree fields added to the STEM OPT Program are critical to the rapidly evolving technological landscape and include fields such as: Bioenergy; Cloud Computing; Economics and Computer Science; Mathematical Economics; Data Science, General; Data Analytics, General; Business Analytics; Data Visualization; Financial Analytics; and Data Analytics, Other; among others. The full list of the 22 new fields of study and complete descriptions are available here.
How will the expansion of the STEM OPT eligible fields of study affect employers?
DHS’s expansion of the fields of study will increase the pool of talented F-1 students who are eligible to work in STEM OPT positions for up to 36 months. An educational background in the above quantitative and technical fields provides students with skills that are essential in the technology, financial services/fintech, biotech and health, and consulting industries, among others. Thus, this policy change provides additional opportunities for employers to hire key talent to address their data analytics, software development, and other engineering needs.
What are an employer’s obligations to hire STEM OPT Candidates?
In order to hire STEM OPT candidates, employers must:
- Be registered for Department of Homeland Security’s E-Verify program and remain a participant in good standing;
- Implement a formal training program for the STEM OPT employee on Form I-983; and
- Provide OPT employment and training terms that are commensurate with other similarly situated U.S. Workers.
Employers looking to rely on a STEM OPT recruitment strategy or to confirm their program complies with regulations and requirements, including with registering in the E-Verify program, should confer with their immigration counsel for company-specific guidance.
Changes to Adjudication of O-1A Visa Petitions
USCIS also updated its Policy Manual to reflect changes to how it will adjudicate O-1A visa petitions for foreign nationals with “extraordinary ability.” Specifically, the policy update:
- Clarifies how USCIS determines eligibility for foreign nationals of extraordinary ability, such as Ph.D. holders in STEM fields;
- Includes comparable evidence that companies may use if a particular legal criterion does not readily apply; and
- Provides examples of evidence and explanations regarding how the government will analyze that evidence for applicants with STEM degrees.
How will the changes to the Policy Manual affect employers filing O-1A petitions?
USCIS officers now have an updated appendix of the types of evidence that “may satisfy O-1A evidentiary requirements,” which immigration practitioners may use as a roadmap for development of O-1A petitions. Further, the appendix explains how practitioners can contextualize the evidence they present so that the evidence is readily apparent to officers on how they should evaluate the probative value of that evidence, or “submit evidence that is of comparable significance to that criterion to establish sustained acclaim and recognition.” 2 USCIS-PM M.4.
The changes likely evidence a shift towards more favorable adjudication of O-1A status for Ph.D. holders, particularly those who serve in critical research positions or are recognized amongst their peers as a leader in the relevant specialized field. Educational institutions, research organizations, health companies, and engineering firms should closely examine the new policy changes and assess whether a shift in their O-1A visa program would help attract and retain top STEM talent in critical positions.
National Interest Waiver of Job Offer Requirement for STEM and Entrepreneurs
Under U.S. immigration law, foreign nationals are eligible to self-petition for U.S. permanent residency without testing the U.S. labor market and without a full-time offer of employment from a U.S. company so long as their presence in the United States would be in the “national interest.”
In connection with the White House’s announcement, USCIS updated its Policy Manual to expand those who may be eligible for a national interest waiver by: 1) explaining the framework for adjudicating a national interest waiver request for STEM field endeavors; 2) describing how the national interest waiver framework applies to entrepreneurs; and 3) confirming that “USCIS considers the date of a provisional degree certificate for purposes of calculating post-baccalaureate experience.” See USCIS Policy Alert.
How does the new policy affect adjudication of national interest waivers for STEM endeavors?
The amendment to the Policy Manual specifically recognizes “the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies.” 6 USCIS-PM F.5. The updated Policy Manual outlines how USCIS will approach the three-prong analysis for a national interest waiver as it relates to (a) persons with advanced STEM degrees pursuing a STEM endeavor, and (b) entrepreneurs who, through innovation and novel endeavors, advance U.S. national security interests, critical advancements in their field, and the competitive advantage of the United States.
How will the new Policy Manual framework for national interest waivers affect employers hiring those in STEM fields?
The addition of positive, STEM-related factors to the three-prong analysis for national interest waivers may result in more opportunities for talented individuals in STEM endeavors to receive a waiver of the labor market test and job opportunity requirements. Accordingly, these policy changes provide an additional and faster pathway for some individuals in STEM-related positions to receive a permanent work authorization in the United States.
How does the policy update affect adjudication of national interest waivers for entrepreneurs?
The update to the USCIS Policy Manual provides a framework for addressing the unique factors associated with an application for a national interest waiver of the job offer requirement as it relates to an entrepreneur-petitioner. Specifically, the Policy Manual notes that USCIS “may consider the fact that many entrepreneurs do not follow traditional career paths, and there is no single way in which an entrepreneurial start-up entity must be structured.” The Policy Manual further highlights additional evidence that may be presented by entrepreneurs to meet the three-prong test—opening the door to creative arguments that may provide a pathway to a green card for foreign national entrepreneurs.
J-1 Academic Training Extensions
In connection with the White House announcement, the U.S. Department of State’s Bureau of Educational and Cultural Affairs (ECA) announced that it is extending the cap for STEM J-1 academic programs from 18 months to 36 months for students pursuing a STEM-related degree. Institutions seeking an extension for STEM-related academic training must comply with all relevant rules and regulations. More information about the extension program can be found at the BridgeUSA website.
Early STEM Research Initiative
In connection with the White House announcement, the ECA also will create an “Early STEM Research Initiative” helping exchange visitors who enter the United States to engage in STEM research through host companies. A presentation further detailing the program can be found here.
Under the program, companies can partner with STEM sponsoring organizations to identify J-1 exchange visitors to fill positions and participate in educational experiences in 15 different education, research, and professional development categories. Some notable categories include Physicians, Professors, and Specialists, and a full list of the categories is available here.
How does this program benefit U.S. institutions and employers?
Through this program, organizations will have the opportunity to identify J-1 exchange visitors who can bring invaluable skills and knowledge to their company through the exchange program. This exchange of knowledge may be critical for higher-education institutions, medical institutions, and research institutions as they seek to meet continued talent demands in the current economic environment. More information regarding participation in the program can be found at the BridgeUSA website.
The White House announcement aligns with policy priorities outlined by the Biden-Harris Administration and is expected to allow companies to build on their recruitment and hiring strategies for certain foreign national employees. These changes also pave the way for keeping talented students and workers in the United States, as a means to continue to spur growth of the U.S. economy.