Delays at USCIS Will Hamper Biden's Actions to Help Foreign Workers and Students in STEM Fields

by Leslie Dellon

The Biden administration recently announced four actions intended to improve immigration “pathways” for noncitizens in science, technology, engineering, and mathematics (STEM) fields. However, these changes are constrained by the delays at U.S. Citizenship and Immigration Services (USCIS) and congressional limits on immigrant visa numbers.

These actions include:

  • Early Career STEM Initiative (J-1 Exchange Visitors)
  • Expansion of “Designated STEM fields” for international academic students (F-1)
  • USCIS Policy Manual updates for the extraordinary ability nonimmigrant category (O-1)
  • USCIS Policy Manual updates for using the national interest waiver (EB-2)

President Biden views these actions as part of America’s tradition of “welcoming new talent,” which has given this country “a global competitive advantage.” The administration expects “international STEM talent” to continue creating new jobs and industries and keeping the United States technologically competitive. Although not specifically addressed in the announcement, current labor shortages in sectors of the U.S. economy that employ STEM-field workers have been magnified by the reduced number of foreign STEM-field workers coming to the United States. More “pathways” for the employment of noncitizens in STEM fields could help reduce the shortages.

The administration attributes these actions to its efforts “to remove barriers to legal immigration.” These efforts include an executive order aimed at restoring faith in the legal immigration system and a joint statement by the Secretaries of Education and State about the importance of international education.

J-1 Exchange Visitor STEM Opportunities

The new initiative aims to match U.S. host companies with J-1 exchange visitors in STEM fields. There are 15 categories of exchange visitors, including intern, trainee, and researcher, who attend programs in which they enjoy cultural and educational experiences that they can share when they return to their home countries. The State Department considers the exchange visitor program to be “public diplomacy” as the programs are intended to increase mutual understanding between U.S. citizens and those of other countries.

The new initiative utilizes the 15 existing J-1 categories. A U.S.-based company that wants to host an exchange visitor in those categories must submit a statement of interest to the State Department that it has the means to offer “quality STEM training and or research opportunities” in the noncitizens’ “respective fields of study and expertise.”

Companies are required to acknowledge the “public diplomacy” purpose of the program as they are prohibited from filling jobs with J-1s that otherwise would be open to U.S. workers. An interested company will work with an organization the agency has already authorized to sponsor exchange visitors and has submitted to the agency a statement of interest in the initiative that also submitted a statement of interest in the initiative.

Newly Designated STEM fields for International Academic Students

International students in F-1 status may receive authorization from U.S. Citizenship and Immigration Services (USCIS) for up to 12 months of work experience directly related to their field of study.

The new initiative expands on existing procedures for F-1 students who have a major in a Department of Homeland Security-designated STEM field of study to receive USCIS approval for a 24-month extension for post-degree work experience. DHS has now added 22 new fields of study, including such fields as Cloud Computing, Bioenergy, and Climate Science.

Eligibility for an O-1 Visa Classification for Noncitizens in STEM Fields or Entrepreneurs

The O-1 is a temporary (nonimmigrant) category for noncitizens of extraordinary ability in various pursuits. Extraordinary ability in science or business refers to a person in the “small percentage” who have risen to the “very top” in their “field of endeavor.” But as a practical matter, noncitizens in STEM fields and entrepreneurs often had difficulty demonstrating to USCIS officers that they met the eligibility requirements.

Through its Policy Manual, USCIS has provided “additional guidance” to show officers how these noncitizens may qualify. For example, one of the criteria is evidence of authoring “scholarly articles.” The agency now offers the presentation of work “at a major trade show” as acceptable “comparable evidence.” Another example is evidence that an entrepreneur or start-up founder has received substantial funding from a venture capital fund instead of evidence of a high salary in the field.

Eligibility for a National Interest Waiver

In most employment-based immigrant visa categories, an employer must satisfy Department of Labor (DOL) requirements for recruiting U.S. workers before sponsoring a noncitizen. The employment-based category (EB-2) for noncitizens who hold an advanced degree (or equivalent) in a professional field or are of “exceptional ability” in the sciences, arts, or business also allows USCIS to waive U.S. employer-sponsorship in the “national interest.”

To make the national interest waiver more accessible, USCIS has “clarified” its guidance to officers about the waiver. For example, the agency now looks particularly favorably on noncitizens with a Ph.D. in a STEM field whose work has the potential to support U.S. national security or enhance U.S. economic competitiveness. As another example, an entrepreneur could show that their business has been accepted into an incubator or accelerator as evidence of the substantial merits of the work to be accomplished in the United States.

The most profound changes will likely be felt by prospective J-1 exchange visitors and F-1 students seeking to extend their post-graduate experience. However, if USCIS does not improve its processing times for work authorization applications, F-1 students will have difficulty taking advantage of the expanded eligibility.

Most entrepreneurs still lack a viable temporary work category. Why should only those of extraordinary ability receive nonimmigrant status? A temporary (nonimmigrant) category specifically for entrepreneurs could keep the United States competitive, create more new jobs and even new industries, while giving these noncitizens the opportunity to build a success record that could make them eligible for permanent residence.

Even more fundamentally, unless more immigrant visas become available to those born in India or China, being able to self-petition in the EB-2 category does not bring them closer to a green card. They will be in the same multi-year backlogs because of the annual and per-country visa limits and numbers that go unused because of slow agency processing.

This post originally appeared on Immigration Impact Reprinted with permission.


About The Author

Leslie Dellon is a Senior Attorney (Business Immigration) at the American Immigration Council where she works to change agency practices that impede the intended use of employment-based visa categories. She encourages business immigration lawyers to consider litigation as another tool to serve their clients, engages in impact litigation and represents amicus curiae before courts and agencies. She has more than 20 years of experience advising small to multinational businesses about immigration strategies. In addition to her extensive business immigration law experience, she previously handled general commercial and corporate matters, including civil litigation. She also was a Trial Attorney in the Federal Programs Branch, Civil Division, U.S. Department of Justice. She is a past Chair of the AILA Washington DC Chapter and has served on AILA National and DC Chapter Committees. Leslie has a J.D. from the George Washington University Law School.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.