USCIS Provides Additional Guidance to Foreign Nationals in STEM Fields

August 18, 2022

Consistent with its goal of removing barriers to legal immigration, U.S. Citizenship and Immigration Services (USCIS) recently issued guidance and launched initiatives related to individuals in the science, technology, engineering, and mathematics (STEM) fields. Through these initiatives, which seek to facilitate retention of talented foreign nationals in STEM fields, USCIS recognizes that the U.S. continues to be a destination for top talent in STEM fields and that the country’s retention of top talent in these fields has led to critical innovation and creation of jobs, new industries, and opportunities for U.S. citizens.

These guidelines inform immigration practice strategy and must be followed by immigration officers deciding immigration petitions. On January 24, 2022, we outlined the Department of Homeland Security’s announcement adding 22 new fields of study to the STEM optional training program through the Student and Exchange Visitor Program (SEVP). The new updated guidance and initiatives related to STEM professionals include:

1. Three (3) New STEM-Specific Resources Websites. On July 28, 2022, USCIS launched the following three (3) additional online resources to guide immigration benefits applicants working in STEM fields through permanent and temporary immigration tracks:

  • Options for Noncitizen STEM Professionals to Work in the U.S. This website provides general answers to frequently asked questions by individuals contemplating working in the U.S. in STEM fields. It also provides a summary of available temporary and permanent immigration tracks, including education requirements and job offer and labor certification requirements.
  • Nonimmigrant Pathways for STEM Employment in the U.S. This portal offers specific guidance on temporary visa opportunities for individuals in STEM fields, including F-1 Optional Practical Training (after completing a bachelor’s or a master’s degree in the U.S.), H-1B Specialty Occupation, O-1A Extraordinary Ability, L-1 Intracompany Transferee, and TN NAFTA Professional (for Canadians and Mexican professionals).
  • Immigrant Pathways for STEM Employment in the U.S. This website provides guidance on ways individuals in STEM fields can obtain permanent resident (green card) immigration status in the U.S., including individuals of extraordinary ability, outstanding professors and researchers, multinational managers and executives, advanced degree professionals, and persons of exceptional abilities, as well as skilled workers, professionals, and other unskilled workers. It is required that they obtain a job offer and/or a labor certification before the filing of the relevant immigrant petition.

2. STEM Guidance Related to O-1 Extraordinary Ability Petitions. O-1 Nonimmigrant Visas are available to people with extraordinary abilities in the fields of science, arts, business, education, and athletics, as well as individuals with extraordinary achievements in the television or motion picture industry. On July 22, 2022, USCIS updated its Policy Manual to reflect that being named on a competitive grant for STEM research is a positive factor to demonstrate that a beneficiary is at the top of their field. In addition, USCIS reaffirmed its position that it would consider comparable evidence of extraordinary abilities in instances where the evidence provided by the applicant does not fit any of the relevant criterion.

3. STEM Guidance Related to National Interest Waiver Petitions. National Interest Waiver Petitions do not require either a job offer or a labor certification and require demonstrating the national importance of a particular endeavor to the U.S. On January 21, 2022, USCIS updated its guidance related to National Interest Waiver Petitions filed by STEM professionals. The updated guidance includes:

  • Significance of STEM Ph.D. Degrees. USCIS clarified an advanced degree, especially a Doctor of Philosophy (Ph.D.) degree, in a STEM field related to critical and emerging technologies is an especially favorable factor to determine whether a person is well-positioned to advance the proposed endeavor of national interest.
  • Letters from Government or Quasi-Governmental Agencies. USCIS acknowledged that letters from government or quasi-governmental agencies (i.e., federally funded research and development centers) are crucial to proving a national interest of the applicant’s proposed endeavor to the U.S.
  • STEM Entrepreneur’s Intellectual Property. USCIS recognized that intellectual property, including patents held by the petitioner or petitioner’s current or former start-up entity with documentation demonstrating how the relevant intellectual property is significant to the field of endeavor, serves as probative evidence of prior record of success and potential to achieve the proposed endeavor.

While these guidelines and initiatives do not rise to the level of major policy or regulatory changes, they demonstrate a willingness from USCIS to facilitate a STEM professional’s understanding of available temporary and permanent immigration options, as well as to facilitate efficient and predictable adjudication of relevant immigration applications by USCIS officers.

We will continue to monitor developments in this area.

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