Episode 56: Biden administration guidance on STEM workers

It’s Jan. 11, and this is your BAL Immigration Report.

• USCIS moves a step closer to raising immigration filing fees.
• The U.S. Embassy in Israel returns to its normal staffing level.
• How Biden administration guidance on STEM workers is making it easier for recent graduates to stay employed.

“What we see now in these changes is the administration taking proactive steps to try to provide more options, particularly to the most needed STEM talent that we have in this country.”

—John Hamill, BAL Partner

U.S. news

Final rule under review

A final rule that would substantially raise U.S. Citizenship and Immigration Services filing fees is under White House review. This review is the last step in the regulatory process before a rule’s publication. The final fee levels are not yet available.

The Department of Homeland Security has indicated it is targeting to publish the rule in April, though it’s possible it could do so sooner. In January 2023, the agency proposed a new fee schedule that increased fees by a weighted average of 40% — and more for most high-skilled categories.

U.S. Embassy returns to normal staffing

U.S. Embassy Jerusalem and Embassy Branch Office Tel Aviv have returned to their normal level of staffing. The U.S. reduced staff and halted visa services at the embassy last fall amid security concerns following the Oct. 7 attack by Hamas. Some visa services have resumed. Embassy officials continue to offer U.S. citizen services. For more information, visit il.usembassy.gov.

US news roundup

• The State Department set a goal of further reducing interview wait times.
• USCIS issued updated guidance on “ability to pay” requirements when adjustment of status applicants switch employers.

Spotlight

Conversation with John Hamill, BAL partner: How Biden administration guidance is making it easier for recent graduates in science, technology, engineering and math, or STEM, to stay employed.

BAL Immigration Report: Last year, the Department of Homeland Security added eight new qualifying fields of study to its STEM Designated Degree Program List. This means that more students are eligible for 24-month optional practical training work authorization extensions. The administration has also updated guidance that provides more options for these workers to stay employed once their STEM extensions run out. BAL’s newest partner, John Hamill, joined us from New York to discuss these changes. We started by asking him about the most common options for university graduates as they approached the end of their F-1 work authorization.

Hamill: What would tend to be the most common visa route for F-1 students to get off of that student visa onto a work visa is the H-1B. And a big reason for that is the F-1 work authorization tends to run out comparatively quickly — usually, depending upon the type of degree you’re studying, between one and three years — but after that, it’s over. So you have to find some other visa category to jump into in order to keep working and living in the U.S. And the H-1B tends to be a good fit for a lot of individuals in this situation because the H-1B legal standard of a “specialty occupation” is a relatively straightforward one to satisfy.

But the rub lies in obtaining an H-1B because one of its hardest parts is that the government has a hard cap on the number of initial H-1Bs that they’re able to give out for most employers in a particular year, and that cap is 85,000. But way more than 85,000 people apply every year. So actually, in order to get an H-1B, you first have to be selected in a lottery that occurs in March of every year. And that can be really, really challenging to do because there are so many more applicants who apply than the government has H-1Bs to give out.

So not getting selected in an H-1B lottery is actually a pretty common occurrence. It’s one you always want to be prepared for and thinking about alternative options. Now, there are always circumstances that are relevant to the individual — every individual case is a little bit different — but I would say now in terms of alternative options, the government has clearly taken notice of the challenge of getting an initial H-1B, and they’ve issued guidance in the last year, even more recently than that, that’s helped make obtaining alternative work authorization a lot easier for, particularly, STEM candidates.

BAL: Hamill specifically mentioned the Biden administration’s efforts to provide clarity on O-1 extraordinary ability visa criteria and the EB-2 green card category.

Hamill: In January of 2022, the Biden administration released some guidance on the O-1 and EB-2 national interest waiver green card categories that have been specifically directed toward providing some alternatives for individuals who are intending on working within STEM fields in the United States. And it really does go to that idea of giving an alternative option to the H-1B route because of how challenging it is to get that first H-1B. In the instances I’m talking about of this guidance in in 2022, basically the U.S. immigration service provided additional clarity on how it adjudicates these types of cases, specifically the O-1 nonimmigrant visa category and the EB-2 national interest waiver, or NIW, green card category. And what that does is give applicants a lot more understanding of what the standards are in order to get approval in these categories.

What I think is particularly important is that these clarifications emphasize the arguments and evidence that can be provided for applicants who are working within STEM fields. For example, in the context of the O-1 policy guidance, the government has added into their general understanding of their general interpretation of what satisfies an O-1. They’ve added a chart that specifically describes examples of evidence that can satisfy the O-1 evidentiary criteria, while also giving considerations that are relevant to evaluating this kind of evidence, and they focus specifically on evidence and considerations that are relevant to people working in STEM fields. They also provided examples of qualifying comparable evidence that petitioners can give, meaning employers who are sponsoring these individuals can give in support of a petition for an O-1 for a beneficiary who’s in the STEM field.

So they’re trying to make it simpler to know what type of evidence you can provide to meet these very challenging O-1 criteria, particularly when you work in a STEM field. It was a similar type of clarity provided in the national interest waiver context, where the government explained in much better detail what the adjudicatory framework is for these type of green cards, while also adding in specific considerations to account for people who are working in STEM fields. So you can see that the government is trying to make it more understandable how a person working in the STEM field can meet these very challenging criteria.

BAL: Science Insider recently reported a jump in both O-1 and EB-2 visas since UCSIS published the updated guidance in 2022. For example, O-1A visas awarded in the 2023 fiscal year jumped 30%, the publication said. USCIS continues to update its guidance providing additional clarification for F and M visa holders last month. Hamill explained its significance.

Hamill: In general, F visas require someone who’s applying for it to demonstrate what we call nonimmigrant intent. What that essentially means is they have to demonstrate that they are intending on maintaining a residence outside of the United States that they do not intend on abandoning. And you can only get the F-1 visa if you demonstrate that nonimmigrant intent. But this can be challenging for F-1 students who want to pursue the green card process, and the reason for that is the green card process carries an intention to stay in the United States, thus implying an abandonment of your foreign residence abroad, and those two items can sometimes conflict.

But the thing that’s a little bit harder for students than, let’s say, seasoned professionals, is that students are in a little bit of a unique situation. They’re often early on in their careers, of course — it’s why they’re in school — and they may not necessarily know exactly what the future holds, what they’re going to do after school. And by the way, that decision may rest on many future factors that they just don’t have yet. And what adds to that uncertainty of what they’re going to do in the future is approvability of a green card case that you may want to pursue, the timing to obtain a green card if you pursue one of those, and some of those timelines can be extraordinary. And the idea that there is some firm commitment early on, when you’re just graduating from school, of knowing exactly what your future plan is, is frankly unrealistic. So in December of 2023, USCIS updated its policy manual to give some clarity to explain that although the nonimmigrant intent requirement still remains the same for F visas, students can still pursue portions of the very drawn out and long green card process without necessarily contradicting this intention. And what it does is give further clarity and safety to F visa students to pursue a green card if it is an option for them, with far less concern that the government is going to cancel their underlying F-1 along the way.

BAL: The changes Hamill describes don’t draw the same attention as wider-ranging regulations or legislative efforts, but Hamill says they matter quite a bit to employers.

Hamill: The immigration system in general, beyond F-1s and H-1Bs and O-1s and NIWs, can be really, really challenging to navigate — not just the requirements themselves, but the backlogs and the red tape and the process that goes into it. But what we see now in these changes is the administration taking proactive steps to try to provide more options, particularly to the most needed STEM talent that we have in this country. So there’s a clear connection between giving opportunities to this type of talent along with getting economic benefits to the country. And that connection is being represented far better now within our current immigration system.

BAL: BAL is hosting an H-1B alternatives webinar on Tuesday, Jan. 23. For more information, BAL.com/events.

Global news

New visa requirement postponed

The Brazilian government has postponed a new visa requirement for nationals of Australia, Canada and the United States. Previously, the implementation date had been Jan. 10; now, the new visa policy will go into effect on April 10. Australian, Canadian and US citizens will then be required to obtain an eVisa online before traveling to Brazil.

Authorities advise travelers to apply for an eVisa well ahead of planned travel on or after the implementation date. Nationals of these countries who already hold a valid physical visa do not need to apply for the eVisa.

Kenya implements visa-free travel

The Kenyan government has announced that all foreign nationals may now enter the country visa free. The policy applies to travelers entering Kenya for tourism or business purposes and allows for stays of up to 90 days.

Travelers must apply for an electronic travel authorization, or ETA, via a new online platform before their arrival in Kenya. The ETA cost $30 and takes about three business days to process, but travelers are encouraged to apply as soon as possible to avoid delays.

Global news roundup

• The Chinese government eased document requirements for visa applicants in the U.S.
• Canadian authorities opened a temporary residency program for residents of Gaza who have family in Canada.
• Philippine officials reminded foreign nationals to complete mandatory annual reporting requirements by March 1.

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