New USCIS Updates for STEM students in O-1 & EB-2 NIW categories

The U.S. Citizenship & Immigration Service (USCIS) recently amended its Policy Manual to provide expanded evidentiary guidelines for F-1 STEM applicants seeking O-1A extraordinary ability classification. This update marks the second time this year that USCIS has modified preexisting guidance to cater specifically to F-1 students in the science, technology, engineering, and mathematics (STEM) fields. The EB-2 National Interest Waiver (NIW) documentary requirements were revised by USCIS in January 2022.

Such modifications to the O-1 and EB-2 NIW sub-regulatory framework reflect an emphasis by the Biden Administration on retaining the best and brightest STEM graduates beyond solely the H-1B category. This Fiscal Year (FY 2023), USCIS received more than 480,000 H-1B registrations of which only 127,600 registrations were initially selected.

The new expanded O-1 guidance includes consideration of grants or stipends for STEM-related research activities as among the non-exhaustive list of evidentiary support for demonstration of rank among the small percentage at the top of the respective field — the legal standard for O-1 eligibility. This initiative by USCIS mirrors that recently promulgated for NIW petitions, and serves to make both categories more widely available to foreign nationals with STEM backgrounds working in furtherance of an area of U.S. national interest or pursuing entrepreneurial endeavors of U.S. prospective benefit.

By: Shaune D. Fraser, Esq.

On Friday, April 5, the United States Citizenship and Immigration Services (USCIS) announced that it had already received sufficient filings for regular H-1B cap-subject cases for fiscal year (FY) 2020. The filing period for cap-subject H-1B petitions opened on Monday, April 1, and for the seventh consecutive year, the general cap was reached within the first week of filing. USCIS will now conduct a lottery to select those petitions that will be adjudicated. Beginning this year, USCIS will officially reverse the order of the general and advanced degree lotteries, prioritizing advanced degree holders in the selection pool.  

Over the past decade, the H-1B visa has been the most practical bridge to employment for graduating students at U.S. academic institutions (F-1 visa holders). However, recent USCIS statistics indicate that 60% of H-1B cases received RFEs (Request of Evidence) in FY 2019 and 40% of those were subsequently denied. These historically high denial rates and the changes to the selection order under the H-1B visa lottery stem from the Buy American and Hire American Executive Order which has resulted in heightened scrutiny during adjudication, specifically as it relates to the interpretation of a specialty occupation, the qualifying employer-employee relationship, and whether the foreign national beneficiary has maintained status.  

In light of these developments and the very high demand for the H-1B classification, F-1 students and other qualified individuals are encouraged to explore the following alternative visa categories which may utilized to facilitate the same employment-related objectives in a swift and efficient manner:  

• O-1 Visa
  Foreign nationals, in any field of endeavor, who have been recognized for their achievements or outstanding work, in the U.S. or internationally, should consider the O-1 visa in lieu of the H-1B. An O petition may be approved for up to three years, and extensions may be granted indefinitely for long-term projects or assignments. Currently, there is no annual limit on O visa numbers. For more information, check out this Blog post.  
  

• EB-2 NIW | Green Card
  In a precedent decision issued in December 2016 (Matter of Dhanasar), the USCIS Administrative Appeals Office (AAO) announced a new analytical framework that has made this green card classification more broadly available to students and professionals pursuing entrepreneurial endeavors in the U.S. national interest.  
  

• TN Visa
  Canadian and Mexican citizens who will perform professional assignments in the U.S. are eligible for the TN visa. A TN petition may be valid for up to three years and can be filed with USCIS, or directly at select ports of entry. The North American Free Trade Agreement (NAFTA) specifies the list of occupations, as well as the corresponding educational and/or licensure requirements, many of which are aligned with the careers of graduating undergraduate or graduate international students.  
  

• L-1 Visa
  This category permits a U.S. company to temporarily transfer certain employees from a foreign affiliate abroad. The employee must be offered employment in either an executive/managerial position (L-1A) or in a specialized knowledge position (L-1B) to qualify for this classification. The foreign national must have been employed by the qualifying foreign corporation for at least one continuous year within the previous three years.  

In addition to the above-referenced visas, there remain a variety of other visa and green card classifications available to those applicants encountering issues with their H-1B petitions. Some of these categories include the EB-1 green card for individuals of extraordinary ability, P-1 visa for athletes and entertainers, E-1/E-2 visas for treaty traders/investors, and B-1 visa for business visitors.

The U.S. remains the global leader in attracting the most talented students and professionals, however, increased scrutiny and restrictionist policies have imposed significant hurdles to those intending to advance their professional careers with U.S.-based corporations. Foreign nationals are advised to begin planning their professional careers well in advance of their anticipated graduation date and, when possible, explore other U.S. immigration categories in order to accelerate their post-academic, professional careers. 

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For more information, please contact me at shaune@fraserpllc.com 

The information provided herein is for information purposes only. It is not intended as legal advice for any particular situation nor presumed as indefinitely up to date.

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