In line with Biden Administration statements reflecting a new immigration policy with a focus on attracting STEM talent, encouraging entrepreneurship, and increasing student exchange, USCIS announced changes to the NIW, O-1, and J-1 visa sections of its policy manual on January 21 st . The new guidance appears to expand the possibilities for foreign entrepreneurs and applicants in STEM fields (Science, Technology, Engineering, and Mathematics) who are looking to pursue careers in the US to meet the eligibility criteria in these visa categories.
National Interest Wavier (EB2)
The biggest changes are to the EB2 Green Card petition for a National Interest Waiver. The NIW is important for foreign entrepreneurs who own a significant stake in their startup because it “waives” the Department of Labor’s recruitment requirement for well-positioned applicants whose endeavors are in the national interest.
With the new guidance, USCIS recognized that foreign entrepreneurs and people who work in STEM are engaged in rapidly changing, frequently “non-traditional” industries and often have experience and careers that do not fit within its normal standards. The guidance clarifies what it means to be an entrepreneur and to work in STEM, respectively. It also clarifies the kinds of evidence that may be submitted to prove the beneficiary’s eligibility.
For example, the guidance emphasizes:
- The significance of letters from governmental and quasi-governmental entities to demonstrat that the applicant’s proposed endeavor is, indeed, in the national interest. We suggest such evidence may also come from universities, highly regarded private and public companies, and renowned people in the proposed field of endeavor.
- The importance of proof that an enterprise has received venture capital funding or acceptance into an established incubator as evidence that the applicant is well- positioned to continue his or her work in the field. Entrepreneurs had previously experienced difficulty explaining the significance of this type of evidence to USCIS adjudicators.
USCIS also sought to clarify its evidentiary requirements for O-1 visas, which are for foreign nationals of extraordinary ability seeking employment in the US. The O-1 visa has become a go-to for entrepreneurs and innovators at startup firms because, unlike the H-1B, it can apply to almost any field of endeavor, including non-traditional areas such as blockchain, machine learning, and data mining. However, USCIS has continued to rely on outdated guidance that reflects conventional and outdated conceptions of scientific advancement and professional achievement to interpret the law. This limited the value of evidence demonstrating an applicant’s acclaim in emerging areas of high growth and innovation. The new guidance signals a greater awareness and acceptance of applicants who work in these areas. In particular:
- USCIS appears to have expanded its criteria of “comparable evidence” to include STEM applicants and entrepreneurs whose evidence of excellence are different than that for traditional occupations. For example, while researchers usually publish in peer-reviewed journals, entrepreneurs typically contribute to blogs or present at TED-like conferences or events. We believe that USCIS is now more likely to accept evidence of blog posts and conference presentations as comparable evidence of “scholarly publications.” The importance of proof that an enterprise has received venture capital funding or acceptance into an established incubator as evidence that the applicant is well-positioned to continue his or her work in the field. Entrepreneurs had previously experienced difficulty explaining the significance of this type of evidence to USCIS adjudicators.
- USCIS also looks to have re-oriented its “totality of evidence” clause toward a positive determination in O-1 cases, especially those involving STEM applicants and entrepreneurs
- The extent to which USCIS will interpret the changes in favor of approval remains to be seen but we believe this new guidance opens the door a bit wider for adjudicators to interpret regulations flexibly to accommodate standards of excellence in entrepreneurship and unconventional STEM fields.
The Biden Administration also announced several changes to the J-1 visa for people in STEM. For the next two academic years, J-1 visas for students and trainees have increased to 36 months from 18 months. It also added twenty-two new areas of study that qualify as STEM fields, many of them interdisciplinary and related to climate change or data science.
The additional 18 months provides J1 visa holder some advantages to build their companies and secure long-term statues, such as H1B, O1 and Green Card. Now J1 visa holders will now be able to:
- Apply for the H1B Lottery at least 1 if not 2 more times
- Build O1 credentials over a longer period of time
- Have a longer “runway” for the PERM/Green Card, NIW and EB1 processes including AOS with less worry about running out of work status before the AOS EAD kicks in.
Exactly how officials will apply these rules remains unclear. The policy changes do not demand that USICS officials consider certain kinds of evidence, nor does it change the law to make it more difficult for the agency to deny petitions. However, the guidance looks to provide greater flexibility —if only slightly—for STEM applicants and foreign entrepreneurs.
The most important implication of the policy changes is that they acknowledge, accept, and incorporate into agency guidance standards of excellence in non-traditional or emerging fields that have become prominent drivers of American innovation. This gives lawyers and clients an edge when arguing for the importance and national benefit of an applicant’s work in STEM and entrepreneurship. We will stay ahead of any issues or new developments that arise because of these changes. Be on the lookout for a more thorough explanation of the Biden administration’s actions in the weeks ahead.