Employer Alert: Recent Immigration Policy Changes to Promote STEM Fields

On January 21, 2022, the Biden Administration released a series of policies aimed to attract and retain talent in Science, Technology, Engineering, and Mathematics (“STEM”) fields in the United States. These policies include:

1. Expansion of STEM fields relating to Optional Practical Training (“OPT) for F-1 students: The U.S. Department of Homeland Security has updated and expanded its list of STEM fields to include 22 new fields of study, which includes Business Analytics, Mathematical Economics, and Financial Analytics, just to name a few.  This addition will enable F-1 student visa holders to be eligible to remain in the United States for up to a total of 36 months after earning a qualifying STEM degree.
2. Expansion of J-1 exchange visitor visas for individuals studying in STEM fields: Under the Department of State’s “Early Career STEM Research Initiative,” certain exchange visitors coming to the United States on J-1 visas may now engage in STEM research with host organizations, including businesses. Moreover, the Department of State also announced a temporary, two-year initiative to facilitate additional academic training for undergraduate and graduate J-1 students in STEM fields for periods of up to 36 months (distinguished from the previous 18-month periods).
3. Updated USCIS policy guidance on national interest waivers for individuals with advanced degrees in STEM fields and entrepreneurs: In its Policy Alert, USCIS clarifies how national interest waivers (a green card petition filed for a person of exceptional ability or a member of the professions with an advanced degree whose work is serving the national interest of the United States) can be used by individuals with advanced degrees in STEM fields, as well as STEM entrepreneurs.  While not required, the guidance acknowledges that letters from interested government agencies (or quasi-governmental agencies in the United States) can be helpful evidence to show how the individual meets the three-prong test that USCIS considers for a national interest waiver. In addition, with entrepreneurs, USCIS recognizes that an entrepreneur petitioner may not follow traditional career paths. As such, the agency appears to be amenable to the idea that there may be unique aspects submitted to the evidence by an entrepreneurial petitioner that would significantly advance the proposed endeavor s/he is undertaking.
4. Updated USCIS policy guidance on O-1 nonimmigrant status for persons of extraordinary ability. In its Policy Alert, USCIS provides additional guidance on how persons in STEM fields can qualify for O-1 nonimmigrant status. In addition to providing specific examples of evidence for supporting a petitioner in the STEM field, the policy alert also clarifies how officers evaluate the totality of circumstances to determine O-1A eligibility and provides examples of positive factors that officers may consider. For example, 2 USCIS-PM M.4, Appendices Tab is added in to provide relevant examples and considerations for each O-1 criterion.

With the expansion of these policies and actions intended to promote the STEM fields, it appears that initial proactive steps are being taken to promote the ability of talented noncitizens to remain and contribute to the U.S. economy. We are hopeful that additional developments will be forthcoming that continue to expand upon these policies/guidance and we will continue to keep you apprised of them.