This morning, the Biden administration announced four new agency actions intended to help the U.S. attract and retain STEM talent from around the world.
It is encouraging to see the administration begin to explore administrative actions to address our declining lead in attracting STEM talent, especially while more comprehensive immigration legislation remains stalled in Congress. In particular, the focus on reforming underrated pathways such as the O-1 visa for immigrants of extraordinary ability and the EB-2 National Interest Waiver should be applauded. These programs are vital for recruiting the world’s top talent and the changes announced today are a promising start to unlocking more of their potential benefits.
Eligibility criteria for O-1A talent
The O-1A nonimmigrant visa is an uncapped category that lets individuals with “extraordinary ability” come to the United States and work on a three-year renewable term. But the program has long been underused, especially by STEM talent, because of ambiguity and uncertainty about the criteria. A typical O-1A petition can end up being in the range of 400 to 500 pages, in no small part because the lack of clarity incentivizes applicants to oversupply evidence that they meet the criteria.
The new guidance from the Biden administration provides much-needed clarity on what counts as extraordinary ability. This change will assist international talent when they’re considering whether to apply under the O-1A in the first place, as well as help adjudication officers make more consistent and predictable decisions about applicants.
In order to qualify for an O-1A visa, a participant must have earned a major international prize (like a Nobel), or satisfy three of eight criteria (like membership in associations, participation in a panel to judge others’ work, authorship of scholarly articles, and employment in a “distinguished” organization). The new guidance doesn’t change these preexisting criteria, but does provide more clarity on what counts toward satisfying them. Here are some examples of the new clarifications:
- A nationally recognized award includes awards from national institutions, awards at conferences, and even some dissertation awards or scholarships. On the other hand, awards are unlikely to qualify if they are available only to individuals within a specific company or school.
- Qualifying association memberships must be selective and require an accomplishment of some kind. For example, fellowships with the Institute for Electrical and Electronics Engineers (IEEE) or the Association for the Advancement of Artificial Intelligence (AAAI) would count and are identified as models. Memberships based on mere educational attainment, years of experience, or membership fees would not count.
- Being a peer reviewer for scholarly publications or conference presentations counts as participating on a panel to judge the work of others.
- Original contributions can be attested by testimonials by others in the field.
- Employment in a critical capacity can include, among other roles, senior faculty, senior research positions, members of key committees, and startup founders. Critical capacity can also be attested to by an organization’s director.
This list of criteria and the accompanying discussion in the revised USCIS policy manual should help reduce the prevailing uncertainty surrounding the term “extraordinary ability” that has made the program so risky and has left this visa category so underused.
National Interest waiver
The EB-2 visa allows permanent residency for individuals with an advanced degree or extraordinary ability, but usually requires a job offer and sponsorship from an employer. Individuals can self-sponsor without an employer if they can secure a national interest waiver, but the opaque process to get a waiver has been plagued by unpredictability.
The administration’s changes to the national interest waiver guidance should reduce the uncertainty inherent in attempting to self-sponsor for an EB-2 visa. Plus, they pair neatly with the O-1 changes discussed above since the EB-2 is a natural pathway to permanent residence for O-1 holders.
Before the new changes, the guidance simply stated that applicants demonstrate that their endeavor has “substantial merit and national importance,” that they are “well-positioned to advance the proposed endeavor,” and that the waiver would be in the national interest. But the prevailing guidance had offered no clarification on what would meet these three criteria.
Under the new guidance, specific types of evidence are listed that would count, with specific guidance for different kinds of applicants like advanced STEM degree holders or entrepreneurs. For example, evidence that an entrepreneur has already secured investments is considered independent validation that their endeavor has substantial merit and that they are well-positioned to advance it.
Expanding the J-1 visa
The Biden administration’s new actions make two changes to the exchange visitor (J-1 visa) program, which allows visitors to participate in one of 15 different educational and exchange programs.
First, it creates a matching program by which designated sponsors running exchange programs can be paired with interested businesses with opportunities for early career STEM talent. While this does not create a new category of exchange programs, it should reduce the cost to businesses of using the existing categories. Businesses with research or training opportunities do not have to set up and operate an exchange program on their own, but can easily identify partner organizations that specialize in running compliant exchange programs.
Second, the new actions double the amount of allowed time for academic training (AT) for non-PhD STEM students on J-1 visas. AT allows J-1 students to work in the United States for a limited time after they graduate for on-the-job training. Before this action, J-1 undergrads and pre-doc students were only allowed 18 months of AT, but this new rule will let participants in STEM fields have up to 36 months over the next two academic years, the same as PhD students. This change makes the AT program more closely resemble the Optional Practical Training (OPT) program for F-1 students, which is available for up to 36 months for STEM F-1 students. The longer international students can remain in the country after graduation, the longer we will all benefit from their significant spillover effects on innovation.
One of the major advantages of these changes is that the J-1 program is not capped by statute. Unlike the changes to the National Interest Waiver, participants in the early career STEM research program will not be competing for a fixed number of visas.
New STEM fields for OPT
The new actions also add a number of new fields to the STEM list to determine whether a student is eligible for the STEM OPT extension. The new fields include new, emerging, and interdisciplinary fields like data science, cloud computing, financial analytics, and mathematical economics.
While many of the new additions rightly belong on the STEM OPT list, their inclusion is not likely to make a significant difference in the number of students in those fields who will be eligible for the STEM extension. Many colleges and universities already make sure that programs that could qualify under multiple CIP codes are listed with the CIP code that ensures their students are eligible for STEM OPT and give international students input in assigning CIP codes (e.g., data science can be listed as computer science or statistics). However, adding these fields to the STEM list will ensure that graduates of smaller schools with fewer foreign students aren’t wrongly excluded.
These four actions bring much needed clarity and attention to underutilized and undervalued visa programs. These steps are just the beginning of the possibilities for attracting talent from around the world through executive action.
Policymakers have only just begun to explore the options for expanding the O-1. The eight criteria used to determine eligibility for the program are determined by the agency, rather than Congress, so modifying the criteria is within the scope of executive action. One new intriguing possibility comes from the National Security Commission on Artificial Intelligence, which officially recommended broadening the scope of extraordinary talent to include more AI talent. The same idea could be applied to other strategically and economically important fields.
Other possibilities for future executive action include expanding the J-1 visa waiver. Today’s improvements to the J-1 are limited by the rule requiring most exchange visitors to return home for two years after the end of their program. This requirement can be waived in a number of circumstances, including if a US government agency is interested in keeping a J-1 visa holder in the country. An agency with an interest in securing STEM talent in the American workforce could expand on these recent J-1 changes by establishing objective eligibility criteria for J-1 holders to apply for an Interested Government Agency Waiver.
Yet another possibility to build on today’s changes is by increasing the duration of the STEM OPT extension or by offering extensions to participants with pending visa petitions and to H-1B lottery losers. OPT is America’s biggest high-skilled recruitment program and significantly increases US innovation, but we force many of the program’s participants to return home even though they want to build careers here.
Ultimately, Congress will be needed for the most important changes to immigration policy. No matter how much executive action can improve programs like the National Interest Waiver, the executive branch cannot change the fact that applicants are competing for a fixed number of visas. But there’s plenty the executive branch can do. Today’s actions prove that. Hopefully the Biden administration is just getting started.