Proposed Immigration Changes to Increase STEM Competitiveness

We are encouraged to see that one of the announced administrative actions targets National Interest Waivers (NIWs), an area that we pointed out in October 2021 needed reexamination and restructuring. Though we advocated for congressional action, this clarification is the first step in making the system more transparent and easily navigable. In essence, USCIS has updated its policy manual to provide more guidance for the adjudication of NIWs, a provision in law that allows the government to waive the statutory requirement of a sponsoring employer for a green card, and the labor certification that there are no U.S. workers qualified and available for the position, when the work of the immigrant is deemed “in the national interest.” The new update provides an overview of the three-pronged analysis used to adjudicate requests. It does not change the analysis prongs but instead offers an expanded overview of how officers should review evidence under each prong.

The updated policy also elaborates on specific evidentiary considerations for STEM fields, underscoring that an advanced degree in a related STEM field (especially a Ph.D.) is an “especially positive factor” in the adjudication of waivers. Adjudicating officers will now also consider the importance of critical and emerging technology fields, including those published by the National Science and Technology Council or the National Security Council. The last National Strategy for Critical and Emerging Technology, published in October 2020, identified twenty technology area priorities, including artificial intelligence, energy technologies, semiconductors and microelectronics, and biotechnologies. Finally, the guidance states that adjudicating officers should consider letters from interested U.S. government agencies or federally funded research centers particularly important when substantiating benefit to the national interest.

The changes to how NIWs are adjudicated are just one in a raft of reforms for STEM immigrants made by the administration in this announcement. Many of the new reforms are targeted towards international students. One major change is the expansion of the STEM Optional Practical Training (OPT) program for foreign students on F-1 visas. Typically, after earning a Bachelors, Masters, or Doctorate degree, F-1 students are permitted to stay in the country for a period of twelve months to be employed in a field directly related to their course of study (OPT can also be used during a course of study). However, STEM students may stay for an additional period of 24 months, and the new guidance adds 22 fields to the STEM OPT program, including general forestry, climate science, data analytics, and social sciences, which greatly expands the number of F-1 students eligible for up to 36 months of OPT.

The administration also announced an “Early Career STEM Research Initiative,” which allows nonimmigrant BridgeUSA J1 exchange visitors to come to the U.S. to participate in STEM research with host organizations, including private-sector employers. It issued new guidance that will allow undergraduate and graduate students in STEM fields on the J-1 visa to request an extension of up to 36 months for additional academic training, like their F-1 student counterparts.

Finally, DHS issued an update to its policy manual relating to O-1A visas, or visas reserved for individuals with extraordinary ability, clarifying what evidence may be used to meet the visa’s qualifications for individuals in the STEM fields. The new policy guidance provides examples of acceptable evidence and elaborates the evaluation criteria, paying special attention to the very technical nature of STEM fields and the often complex nature of the information that is submitted. It allows for flexibility in demonstrating that the O-1A category applies in STEM fields.

On January 25, 2022, four days after the Biden administration announcements, the House of Representatives unveiled the America COMPETES Act of 2022. The COMPETES Act has been framed as the House’s “China bill,” a counterpart to the Senate’s USICA. While the Senate bill does not include any immigration provisions, the House bill does.

The America COMPETES Act is meant to boost American competitiveness, particularly in semiconductor manufacturing and research. It increases domestic STEM education opportunities and encourages and incentivizes partnerships between industries, academia, non-profits, and governments.

The House bill’s immigration provisions, specific to STEM immigration and start-ups, could be viewed as the House’s contribution to the immigration portion of the administration’s broader competition policy. It creates a new entrepreneur visa and exempts some skilled immigrants from numerical green card caps. The new entrepreneur visa amends the Immigration and Nationality Act (INA) to create a new “W” nonimmigrant visa category. The category would be made up of three classifications: W-1, entrepreneurs with an ownership interest in a start-up; W-2, essential employees of a start-up; and W-3, the children of holders of W-1 or W-2 visas. These nonimmigrants would be eligible to obtain a green card (without any annual caps) if the start-up meets additional requirements for investment, job creation, or revenue in the United States. Under the second provision, some foreign nationals (including their families) would be exempt from the numerical limits on immigrant visas if they possess a doctoral degree in a STEM field, obtained from either a U.S. institution or a foreign institution that has an equivalent level STEM program.

The Biden administration and Congress are interested in maintaining America’s competitive edge, especially in the STEM fields. While immigration is one prong in a larger strategy, the immigration provisions in the COMPETES Act and the agency actions regarding STEM immigration demonstrate how crucial immigration is to the overall mission of global competitiveness.

The administration’s STEM agency actions work within the existing regulatory structure to bring in new people from overseas and retain students coming out of university, strengthening both our recruiting pipeline and our student-to-green card pipeline and opening more possibilities to transition from temporary to permanent status for those foreign nationals. The America COMPETES Act of 2022 would build on these agency actions by permanently widening the path for immigrant entrepreneurs and high-skilled immigrants to enter the U.S.

Though these changes are encouraging and needed, there is still work to be done if the U.S. is to maintain long-term competitiveness in the STEM fields:

• Congress should act regarding NIWs. It is the best way to set the program up for long-term success.
• These reforms overlook the H-1B visa program. Backlogs in the green card process for those seeking to adjust from H-1B are a significant barrier to immigrants who may contribute to American competitiveness.