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USCIS Provides Additional Guidance for Foreign Nationals in STEM Fields | Tarter Krinsky & Drogin LLP

In keeping with its goal of removing barriers to legal immigration, United States Citizenship and Immigration Services (USCIS) recently issued guidance and launched initiatives related to individuals in science, technology , engineering and mathematics (STEM). Through these initiatives, which aim to facilitate the retention of talented foreign nationals in STEM fields, USCIS recognizes that the United States continues to be a destination for top talent in STEM fields and that the retention of top talent in these areas has led to innovations and the creation of jobs, new industries and opportunities for American citizens.

These guidelines inform immigration practice strategy and should be followed by immigration officers who adjudicate immigration applications. On January 24, 2022, we highlighted the Department of Homeland Security announcement the addition of 22 new fields of study to the STEM elective curriculum through the Student and Exchange Visitor Program (SEVP). New and updated guidelines and initiatives for STEM professionals include:

1. Three (3) new STEM-specific resource websites. On July 28, 2022, USCIS launched the following three (3) additional online resources to guide applicants for immigration benefits working in STEM fields through permanent and temporary immigration pathways:

  • Options for Noncitizen STEM Professionals to Work in the United States This website provides general answers to questions frequently asked by those considering working in the United States in STEM fields. It also provides a summary of the temporary and permanent immigration pathways available, including education requirements and job offer and labor certification requirements.
  • Nonimmigrant Pathways for STEM Employment in the US This portal offers specific guidance on temporary visa opportunities for individuals in STEM fields, including optional F-1 practical training (after earning a bachelor’s or master’s degree in the United States ), H-1B Specialty Occupation, O-1A Extraordinary Ability, L-1 Intra-Company Assignee, and TN NAFTA Professional (for Canadian and Mexican Professionals).
  • Immigrant Pathways for STEM Employment in the US This website provides guidance on how people in STEM fields can obtain permanent resident (green card) immigration status in the US, including people with extraordinary abilities , outstanding professors and researchers, multinational managers and executives, graduate degrees. professionals and people with exceptional abilities, as well as skilled workers, professionals and other unskilled workers. It is necessary that they obtain a job offer and/or a work certificate before submitting the corresponding immigration application.

2. O-1 Extraordinary Ability Petition STEM Guidance. O-1 nonimmigrant visas are available to individuals with extraordinary ability in the sciences, arts, business, education, and athletics, as well as individuals with extraordinary achievement in the television or film 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 in demonstrating that a recipient is at the top of their field. In addition, USCIS reaffirmed its position that it would consider comparable evidence of extraordinary abilities in cases where the evidence provided by the applicant does not meet any of the relevant criteria.

3. STEM Guidance for National Interest Waiver Requests. National interest waiver petitions do not require a job offer or work certificate and require demonstrating the national importance of a particular business to the United States. The updated guidelines include:

  • Importance of STEM doctorate. Degrees. USCIS clarified that a graduate degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field related to critical and emerging technologies is an especially favorable factor in determining whether a person is well placed. to advance the proposed effort of national interest.
  • Letters from governmental or quasi-governmental agencies. USCIS has recognized that letters from governmental or quasi-governmental agencies (i.e., federally funded research and development centers) are essential to demonstrate the national interest of the company proposed by the candidate in the United States.
  • STEM entrepreneur intellectual property. USCIS has recognized that intellectual property, including patents owned by the petitioner or the petitioner’s current or former startup entity with documentation demonstrating how important the relevant intellectual property is to the field of business, serves conclusive evidence of the track record of success and the potential to carry out the proposed effort.

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

We will continue to monitor developments in this area.


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