The Biden administration announced a series of policy changes designed to attract and retain immigrants with education in STEM (science, technology, engineering and mathematics) fields.
The changes include updating the list of academic disciplines that count as STEM, expanding employment opportunities to exchange students in STEM fields, clarifying criteria for "extraordinary ability" visas to include STEM workers and easing the availability of permanent residence for foreign nationals with a STEM background.
"The Departments of State and Homeland Security are announcing new actions to advance predictability and clarity for pathways for international STEM scholars, students, researchers, and experts to contribute to innovation and job creation efforts across America," President Joe Biden said in a statement. "These actions will allow international STEM talent to continue to make meaningful contributions to America's scholarly, research and development, and innovation communities."
Jon Baselice, vice president of immigration policy for the U.S. Chamber of Commerce, said the changes will help allay the nation's labor shortages: "These targeted actions will help American companies meet their critical workforce needs moving forward and is one of a series of key actions needed to address the workforce shortage crisis."
STEM OPT Degree Additions
The Department of Homeland Security (DHS) added 22 new degree programs to its list of eligible fields for the STEM optional practical training (OPT) extension program. The program allows students with F-1 visas with a qualifying STEM degree to hold OPT work authorization for up to 36 months.
"These degree programs cover several fields of study, including forestry, climate studies, and interdisciplinary degrees involving economics, mathematics, computer science, data science, analytics, and industrial and organizational psychology," said Tejas Shah, a partner in the Chicago office of Barnes and Thornburg.
These fields have been added to the full list of designated STEM degrees. A new process will allow stakeholders to nominate other degree fields for inclusion in or deletion from the STEM OPT program in the future.
"The STEM OPT extension has become particularly critical as demand for visas such as the H-1B has increased considerably while the available number of visas has remained static for a decade," Shah said. "Individuals eligible for the STEM OPT extension can maintain their U.S. employment for three years while awaiting selection in the annual H-1B lottery."
The OPT STEM program had been flagged for elimination during the Trump administration, but maintaining it drew bipartisan support from lawmakers.
Expanding Opportunities for Exchange Students
New guidance from the Department of State will allow STEM exchange students (and recent graduates) with J-1 visas in the "College and University Student" category to obtain up to 36 months of additional academic training, up from a previous maximum of 18 months. This initiative will run for the 2021-2022 and 2022-2023 academic years.
In addition, the State Department's Early Career STEM Research Initiative aims to encourage more private-sector businesses to hire J-1 exchange visitors as STEM researchers, trainees and interns through a program that historically has been used mostly by universities and nonprofits. "The international exchange community is excited to see the Department of State step forward with an initiative of such scale and ambition," said Gennady Babankov, manager of the SHRM Exchange Visitor (J-1 Visa) Programs. "The STEM initiative will connect U.S.-based STEM entities interested in serving as host organizations with sponsors of STEM-focused exchange visitors, thus allowing more foreign professionals to bring their skills to the workplace without permanently replacing U.S. workers in highly skilled science and technology roles."
USCIS Changes
U.S. Citizenship and Immigration Services (USCIS) is updating its policy manual to clarify criteria for the O-1A visa status for people of extraordinary ability to include people working at high levels in STEM fields.
"USCIS has responded to long-standing requests for guidance on the eligibility of STEM graduates and entrepreneurs for the temporary O-1 visa by identifying specific examples of evidence such applicants can present to meet these eligibility requirements," Shah said.
"Along with providing examples of evidence that may satisfy the O-1A criteria, USCIS' policy update includes a discussion of considerations relevant to evaluating such evidence," said Faraz Qaisrani, an attorney in the Atlanta office of Greenberg Traurig. "For example, the new guidance includes a discussion on considerations that can help determine whether a Ph.D. scholarship amounts to a nationally or internationally recognized award for excellence within the field of endeavor."
The agency is also updating its guidance to clarify how certain STEM graduates and entrepreneurs can use the National Interest Waiver program. Employers seeking to hire foreign nationals through an employment-based green card must typically obtain a permanent labor certification from the Department of Labor that proves there are no qualified U.S. workers for the position they are seeking and that their employment will not adversely affect similarly employed U.S. workers. But for certain individuals with an advanced degree or exceptional ability, a waiver of the labor certification may be sought if it is considered to be in the interest of the United States.
The updated guidance clarifies how STEM graduates and entrepreneurs can take advantage of the waiver program.
"In addition to emphasizing the importance of such evidence to eligibility for a national interest waiver, USCIS notes that there may be little benefit from labor certification in the case of an entrepreneur," Shah said. "The agency also explicitly states that U.S. competitiveness in certain STEM fields is a particularly relevant and urgent consideration when evaluating eligibility for a national interest waiver."
Shah said that while the policy changes "fall short of those needed to address many bottlenecks in the U.S.'s ability to attract and retain STEM talent, such as addressing lengthy green card backlogs, they are significant."
He added that the clear endorsement of the eligibility of STEM graduates and entrepreneurs for O-1 visas makes it clear that the O-1 is a valuable alternative to the quota-limited H-1B visa category.
"Both employers and foreign nationals should consider re-evaluating their options, given these regulatory and policy revisions," he said.
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