January 21, 2022
The White House Announces Immigration Actions to Attract STEM Talent and Update O-1 “Extraordinary Ability” and National Interest Waiver Standards
January 21, 2022 – The Departments of State and Homeland Security announced today new immigration actions to expand opportunities for foreign STEM scholars, students, researchers, and experts and the U.S. businesses that seek to employ them, as well as new guidance for O-1A “extraordinary ability” and national interest waiver (NIW) petitions.
Today’s announcements include:
- Guidance that will facilitate J-1 academic training for university students in STEM fields for up to 36 months. The State Department’s Bureau of Educational and Cultural Affairs (ECA) announced an “Early Career STEM Research Initiative” to facilitate BridgeUSA J-1 exchange visitors coming to the United States to engage in STEM research through research, training, or educational exchange visitor programs with host organizations, including businesses.
- Expansion of STEM Optional Practical Training. The Department of Homeland Security (DHS) announced that 22 new fields of study are now included in the STEM Optional Practical Training (OPT) program. The program permits F-1 students earning bachelor’s, master’s, and doctoral degrees in certain STEM fields to remain in the United States for up to 36 months to complete OPT after earning their degrees. Information on the new fields of study will be communicated to schools and students in a forthcoming Federal Register notice. The added fields of study are primarily new multidisciplinary or emerging fields, and are critical in attracting talent to support U.S. economic growth and technological competitiveness.
- Clarification of O-1A “extraordinary ability” visa requirements. DHS is updating its guidance on what constitutes “extraordinary ability” (O-1A) nonimmigrant status and what evidence may satisfy the O-1A evidentiary criteria.
- O-1A nonimmigrant status is available to persons of extraordinary ability in the fields of science, business, education, or athletics. DHS is clarifying how it determines eligibility for immigrants of extraordinary abilities, such as Ph.D. holders, in the science, technology, engineering, or math (STEM) fields.
- The new update provides examples of evidence that may satisfy the O-1A evidentiary criteria and discusses 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.
- The update also emphasizes 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. Additionally, it provides examples of possible comparable evidence that may be submitted in support of petitions for beneficiaries working in STEM fields.
- Guidance on national interest waiver petitions. DHS also updated its guidance on how U.S. Citizenship and Immigration Services (USCIS) decides national interest waiver (NIW) petitions for foreign nationals with exceptional abilities in STEM fields.
- The Immigration and Nationality Act (INA) provides that an employer can file an immigrant petition for a person of exceptional ability or a member of the professions with an advanced degree. The INA provides that USCIS may waive a job offer requirement, allowing immigrants whose work is in the national interest to petition for themselves, without an employer.
- The USCIS policy update clarifies how the NIW can be used for persons with advanced degrees in STEM fields and entrepreneurs, as well as the significance of letters from governmental and quasi-governmental entities. This update will promote efficient and effective benefit processing as USCIS reviews requests NIWs.
Ulmer’s Immigration Law Group is analyzing the details of these new policies and will update this advisory with additional comment and analysis. Please reach out to our immigration attorneys if you have any questions.
The information provided in this client alert speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. Please continue to follow these updates at ulmer.com. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this client alert, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact David W. Leopold at firstname.lastname@example.org.