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DHS Implements Efforts to Attract STEM Students and Workers to US and Updates O1A Visa Guidance

What Action is DHS Taking for STEM Students? 

As a result of a February 2021 Executive Order issued by the Biden Administration, the Department of Homeland Security (DHS) and the U.S. Department of State is taking action to bring more Science, Technology, Math, and Engineering (STEM) students from around the world to the United States to study and work.

Below is a description of each of the new initiatives announced by the Biden Administration. 

Early Career STEM Research Initiative 

Through its Bureau of Educational and Cultural Affairs (ECA), the Department of State is initiating an Early Career STEM Research Initiative that will utilize existing educational and cultural exchange programs to bring STEM exchange visitors to the United States under the J1 Visa to work with STEM host organizations.

This new program will have 15 different exchange categories focused on education, research, or professional development.

Academic Training Extensions for J-1 College and University Students in STEM Fields

In response to the Joint Statement of Principles in Support of International Education between the U.S. Department of State and the U.S. Department of Education, a new initiative will allow eligible College and University Student-category exchange visitors participating in academic training in STEM fields to seek academic training extensions for a maximum of 36 months. 

In order to be eligible for this extension, you must be a J1 visa holding undergraduate or pre-doctoral degree-seeking College or University student who is pursuing or recently completed STEM-related students. Non-degree seeking students are not eligible. 

Update to the Department of Homeland Security STEM Designated Degree Program List

DHS has announced an update to its STEM Designated Degree Program List, which is used to determine whether a degree obtained by certain F1 visa holding nonimmigrant students qualifies as a STEM degree following the completion of the student’s program. This is significant because it expands the eligibility to apply for a 24-month extension of post-completion optional practical training (OPT) to students who earned a STEM-related degree. 

The DHS’ update adds 22 fields of study that will now qualify for the 24-month extension of post-completion OPT through the Student and Exchange Visitor Program (SEVP). The SEVP program is available for F1 students earning Bachelors, Masters, and Doctorates in certain STEM fields to remain in the United States for up to 36 months after earning their degrees in order to complete OPT. 

The 22 new fields are primarily new multidisciplinary or emerging fields that the Biden Administration recognizes as critical in attracting talent to the U.S. for improving economic growth and technological competitiveness. 

What Action is DHS Taking for O1A Applicants? 

DHS has updated its guidance for how individuals in a STEM field who are applying for the O1A nonimmigrant visa should prove their eligibility for the visa through evidence, and how the DHS determines their eligibility. 

The O1A visa is available for individuals with extraordinary ability in the fields of science, business, education, or athletics, including STEM. 

DHS’ new update includes examples of evidence that may satisfy the O1A evidentiary criteria and discusses considerations that are relevant to evaluating such evidence. The update puts a greater focus on the highly technical nature of STEM fields and the complexity of the evidence typically submitted, including that petitioners may submit evidence that is of comparable significance to evidence typically submitted when a particular criterion does not apply to the petitioner’s STEM occupation. 

What Action is DHS Taking for National Interest Waiver?

The United States Citizenship and Immigration Services (USCIS), which operates under DHS has issued new updated guidance pertaining to the adjudication of requests for National Interest Waivers (NIW) by individuals with advanced degrees in STEM fields and entrepreneurs who are applying for the EB2 immigrant visa. 

The new guidance addresses job offer and labor certification requirements for certain advanced degree professionals and individuals of exceptional ability, including unique considerations for individuals with advanced STEM degrees.

The National Interest Waiver allows noncitizen workers to forgo the requirement that they have a job offer from a U.S. employer, and that such employer receive a permanent labor certification from the Department of Labor, if doing so would be in the interest of the United States. 

The USCIS’ new guidance provides STEM applicants seeking a NIW a framework for how the USCIS will adjudicate and evaluate evidence of STEM applicants, including those in new multidisciplinary or emerging fields. This includes how the USCIS will evaluate Substantial Merit and National Importance; the applicant’s ability to Advance the Proposed Endeavor; and the Benefit to the United States in waiving the job offer requirement. 

In sum, this USCIS update clarifies how the national interest waiver can be utilized by individuals with advanced degrees in STEM fields as well as entrepreneurs. The update also provides useful guidance to STEM NIW applicants about the significance role letters from governmental and quasi-governmental entities can have in determining STEM NIW eligibility. 

How Does DHS’ Actions Impact H1B Applicants?

Among all H1B applicants who sign up for the H1B lottery each year, many – if not most – are in a STEM field.

The DHS’s new guidance with regard to STEM students and workers with extraordinary ability can help alleviate the demand placed on the H1B lottery by giving STEM workers other avenues for receiving a visa to the United States. 

For example, students who utilize the OPT program extension are able to work in the United States without having to compete for an H1B visa in the lottery. This can allow students to seek an H1B visa while working in the United States under the OPT program extension. 

All of these STEM-related program updates will generally allow greater opportunity, or at least greater clarity, for STEM students and workers regarding their options to work in the U.S. outside of the H1B visa program. Assuming these program options will attract STEM workers who would otherwise pin their hopes of working in the U.S. on the H1B lottery, the H1B lottery itself may become less competitive with potentially fewer individuals relying on the H1B visa lottery. 

How Does DHS’ Actions Impact Green Card Applicants?

Given the similar eligibility requirements between the O1A nonimmigrant visa for workers with extraordinary ability and the EB1A immigrant visa for workers with extraordinary ability, the new USCIS guidance regarding STEM evidentiary eligibility for the O1A visa should apply to the EB1A visa as well.

Certainly, many STEM workers, especially recent student graduates, cannot qualify as having an extraordinary ability or as qualifying for the National Interest Waiver, despite new DHS guidance offering greater options and clarity regarding evidentiary requirements.

Nonetheless, STEM students who are able to extend their training program under the J1 visa or OPT extension under the F1 visa can utilize the time period extension to pursue employment-based immigrant visas, such as the EB2A visa. Additionally, this time may be used to develop some of the employment-based eligibility criteria during their extension, including NIW criteria.

STEM students and workers from particular countries, such as India and China, will still confront the competitiveness that persists in the EB1, EB2, and EB3 categories, but especially the lengthy backlogs that exist for India in EB2 and EB3 Dates for Filing and Final Action Dates. Notably, the updates provided by the DHS regarding STEM under the National Interest Waiver will not be of much use to workers from India given these backlogs.

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

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