Over the past few weeks, the White House has highlighted the continued importance of attracting talented scientists and engineers from around the world, and supporting the fields of science, technology, engineering, and mathematics (STEM). These fields are considered critical to the prosperity, security, and health of the United States. In the past, the White House has expressed concerns about global adversaries outpacing the U.S. by developing expertise in STEM subjects and generating more breakthrough and developing technologies that change markets or alter the balance of military power.
On January 4, 2022, the Biden Administration issued Guidance for U.S. Scientific Research Security that Preserves International Collaboration. While conceding the need to address research security challenges from strategic adversaries that seek to illicitly acquire American advanced technologies, the guidance emphasized the fundamental importance of attracting global scientific talent stating: “[O]f this year’s four American winners of the scientific Nobel Prizes, three immigrated to the United States.”
Soon thereafter, on January 21, 2022, the White House published a Fact Sheet announcing several new actions by the Department of State (DOS) and the Department of Homeland Security (DHS) supporting and encouraging global talent to contribute to job creation and innovation efforts across America. The actions do not create new immigration categories but rather clarify or broaden policies related to existing categories.
J-1 Nonimmigrant Exchange Visitors
- The J-1 nonimmigrant category is reserved for exchange visitors and includes international researchers, scholars, educators, students, specialists and others.
- DOS announced it will facilitate the research, training and education of exchange visitors with organizations and businesses through the “Early Career STEM Research Initiative.”
- DOS also announced an initiative for foreign undergraduate and pre-doctoral degree students to extend their STEM-related academic training for up to 36 months.
- Result: Institutions may discover new talent and future leaders by using these initiatives to offer training and research opportunities to foreign students and professionals.
F-1 Nonimmigrant Students
- The DHS Secretary expanded the STEM Designated Degree Program List by adding 22 broad new fields of study. An international student who completes a U.S. degree in a field that appears on the STEM list is eligible for up to 36 months of employment authorization (also known as optional practical training – OPT) as part of the degree program.
- A DHS Federal Register Notice, published the same day, provides descriptions of the 22 new fields of study, and requests interested parties provide feedback about the STEM list.
- The entire list of STEM Designated Degree Programs is available here. The 22 new fields of study announced by DHS are: bioenergy; general forestry; forest resources production and management; human-centered technology design; cloud computing; anthrozoology; climate science; earth systems science; economics and computer science; environmental geosciences; geobiology; geography and environmental studies; mathematical economics; mathematics and atmospheric/oceanic science; general data science; general data analytics; business analytics; data visualization; financial analytics; other data analytics; industrial and organizational psychology; and social sciences, research methodology, and quantitative methods.
- Result: By employing students and recent graduates, employers get access to this talent early in their career journey. The students have knowledge and training in a broad span of STEM fields and are eligible for OPT employment authorization for up to three years.
O-1 Nonimmigrants with Extraordinary Abilities
- DHS clarified its policy manual regarding the applicability of the O-1 nonimmigrant category for individuals with extraordinary abilities in STEM fields. The policy manual now provides examples of evidence – along with guidance for evaluating such evidence given the highly technical nature and complexity of certain STEM fields.
- Result: The guidance appears to potentially expand eligibility to a wider pool of STEM professionals. Importantly, there is no limit placed on the number of foreign workers authorized to work under the O-1 category; the O-1 category does not suffer from the unpredictability of the random selection process the government utilizes for the H-1B specialty occupation category.
EB-2 Immigrants with an Advanced Degree or Exceptional Ability + National Interest Waivers
- DHS updated its policy manual to address how professionals in STEM fields may: (a) qualify to immigrate to the United States through the employment-based (EB-2) category for individuals with an advanced degree or exceptional ability, and (b) concurrently demonstrate eligibility for a national interest waiver by showing their employment in the United States will greatly benefit the nation. An individual approved for a national interest waiver is not required to have a specific job offer or test the U.S. labor market to demonstrate that there are no able, willing, minimally qualified U.S. workers that are available, thus avoiding the lengthy labor certification process required for certain immigrant categories. A foreign national may self-petition.
- The changes to the policy manual regarding the national interest waiver provide further clarity about the evidence necessary to satisfy the legal requirements, and it expands upon how the criteria applies to entrepreneurs. For example, DHS emphasized that factors weighing heavily in favor of approving a national interest waiver include:
- The foreign national possessing an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field.
- The proposed endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness.
- The submission is supported by letters from interested U.S. government agencies or quasi-government entities in the United States such as federally-funded research and development centers, and the letters explain how the United States would benefit from the individual’s contributions.
- Result: The new guidance discusses the unique considerations for individuals working in STEM fields and entrepreneurs. This immigration category provides an option for companies and organizations to employ foreign workers on a long-term basis.
Companies and organizations have significant interests at stake and must be equipped with the tools and guidance they need to attract and retain STEM workers. These policy updates are intended to promote the efficient and effective processing of benefit requests and increase the onshoring of foreign nationals with expertise in STEM fields to strengthen the U.S. economy and technological competitiveness. However, the law is complex and nuanced. Understanding these policies is crucial to employers ensuring compliance to build an outstanding and globally-competitive workforce.
The new guidance complements other recent announcements by the Administration such as the initiative Bringing Semiconductor Manufacturing Back to America and the White House listening session on addressing barriers to competition and innovation in technology.