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.

For tech, business, and creatives professionals, entrepreneurs, athletes & coaches, and qualifying F-1 students and J-1 exchange visitors, the O-1A work/employment visa remains one of the best U.S. immigration options despite significant increases in visa backlogs, denials of routine visa extensions, and retrogression amongst employment based (EB) green card categories.

The O-1A visa has no annual numeral limitation/cap and no visa lottery. This 3-year work/employment visa is reserved for individuals who possess extraordinary ability in the sciences, education, business, motion picture, arts or athletics. Per the regulations, “extraordinary ability” is exhibited through a showing of sustained national or international acclaim and a demonstrated record of achievement, and the O-1 classification has been interpreted to apply to “any field of endeavor”.

Contrary to popular belief, the O-1A visa is available to individuals who possess special skills in their area of expertise (not just Nobel Prize laureates or Oscar winners, et. al.). Talented individuals in these fields can establish eligibility through the submission of documentation that fulfills three (3) of the below-listed O-1A criterion:

·       Employment in a critical or essential capacity;

·       Original scientific, scholarly, or business-related contributions;

·       Published material about you in professional or major trade publications, or other major media;

·       Membership in associations;

·       Authorship of scholarly articles in the field, in professional journals, or other major media;

·       High salary or other remuneration;

·       Participation as an official judge/reviewer of the work of others; and

·       Receipt of a national or international award.

Most importantly, the USCIS premium processing program remains available to O-1A applicants, allowing for approvals to be secured very quickly (within 15 days) once the requisite documentation is obtained.   

Despite the restrictive effects of the Buy American and Hire American (BAHA) Executive Order and associated policies on immigration categories such as the H-1B, the O-1A visa remains underutilized and is among the best visa categories for talented foreign nationals.

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For more information on the O-1A visa or any other U.S. immigration options, 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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