Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
Over the last two years, the Biden-Harris administration has repeatedly announced actions to attract and retain science, technology, engineering and mathematics (STEM) talent to strengthen the U.S. economy and competitiveness. This has allowed foreign nationals with a focus on STEM fields to enter and remain in the United States at higher rates, a marked shift from Trump-Pence administration policies that made it increasingly difficult for foreign-born professors, researchers, scientists and scholars to enter and remain in the United States through lawful immigration pathways. These new efforts have been focused on both nonimmigrant/temporary and immigrant/permanent resident pathways, through increased guidance on the O-1A visa for individuals with extraordinary ability or achievement in the sciences, and the EB-1 employment-based, first-preference immigrant visa for individuals of extraordinary ability in the sciences and outstanding professors or researchers, respectively.
The supporting documentation for an O-1A petition must include evidence that the beneficiary has received a major internationally recognized award (such as the Nobel Prize) or at least three of the following eight forms of evidence:
1. Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
2. Documentation of the beneficiary’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields.
3. Published material in professional or major trade publications or major media about the beneficiary relating to the beneficiary’s work in the field for which classification is sought, which must include the title, date and author of such published material and any necessary translation.
4. Evidence of the beneficiary’s participation on a panel or individually as a judge of the work of others in the same or in an allied field of specialization for which classification is sought.
5. Evidence of the beneficiary’s original scientific, scholarly or business-related contributions of major significance in the field.
6. Evidence of the beneficiary’s authorship of scholarly articles in the field, in professional journals or other major media.
7. Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
8. Evidence that the beneficiary has either commanded a high salary or will command a high salary or other remuneration for services as evidenced by contracts or other reliable evidence.
On Jan. 21, 2022, the White House issued STEM guidance encouraging U.S. Citizenship and Immigration Services to look on applicants for O-1A nonimmigrant status for persons of extraordinary ability or achievement in STEM fields who will be coming to the United States to work in their area of extraordinary ability. The Biden-Harris administrated noted, “In the fields of science, technology, engineering, and mathematics (STEM) — fields that are critical to the prosperity, security, and health of our Nation — our history is filled with examples of how America’s ability to attract global talent has spurred path-breaking innovation. This innovation has led to the creation of new jobs, new industries, and new opportunities for Americans across the United States.” See Jan. 21, 2022, White House Fact Sheet: “Fact Sheet: Biden-Harris Administration Actions to Attract STEM Talent and Strengthen Our Economy and Competitiveness.” Immediately following this announcement from the White House, USCIS issued new policy guidance emphasizing that USCIS should look upon and review favorably O-1A beneficiaries in STEM fields who will be coming to the United States to work in their area of extraordinary ability and determine “whether the prospective work involves skill sets, knowledge or expertise for which the beneficiary has garnered acclaim.” See Jan. 21, 2022, USCIS Policy Alert (PA-2022-03): “O-1 Nonimmigrant Status for Persons of Extraordinary Ability or Achievement.”
For many, the O-1A nonimmigrant visa transfers nicely to an EB-1 employment-based, first-preference immigrant visa for individuals of extraordinary ability in the sciences. Notably, the EB-1 extraordinary ability petition is the only of the three options discussed in this article that can be self-sponsored; both the O-1A visa and the EB-1 outstanding researcher petition must be sponsored by a U.S. employer. The supporting documentation for an EB-1 extraordinary ability petition must include evidence of a one-time achievement (such as the Nobel Prize) or at least three of the following 10 forms of evidence, with Nos. 7 and 10 not readily applicable to individuals in STEM fields:
1. Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence.
2. Evidence of membership in associations in the field which demand outstanding achievement of their members.
3. Evidence of published material about the beneficiary in professional or major trade publications or other major media.
4. Evidence that the beneficiary has been asked to judge the work of others, either individually or on a panel.
5. Evidence of original scientific, scholarly or business-related contributions of major significance to the field.
6. Evidence of authorship of scholarly articles in professional or major trade publications or other major media.
7. Evidence that the beneficiary’s work has been displayed at artistic exhibitions or showcases.
8. Evidence of the beneficiary’s performance of a leading or critical role in distinguished organizations.
9. Evidence that the beneficiary commands a high salary or other significantly high remuneration in relation to others in the field.
10. Evidence of the beneficiary’s commercial successes in the performing arts.
The supporting documentation for an EB-1 outstanding researcher petition must include evidence at least two of the following six forms of evidence:
1. Evidence of receipt of major prizes or awards for outstanding achievement.
2. Evidence of membership in associations that require their members to demonstrate outstanding achievement.
3. Evidence of published material in professional publications written by others about the beneficiary’s work in the academic field.
4. Evidence of participation either on a panel or individually as a judge of the work of others in the same or allied academic field.
5. Evidence of original scientific or scholarly research contributions in the field.
6. Evidence of authorship of scholarly books or articles in scholarly journals with international circulation in the field.
On Sept. 12, USCIS issued updated policy guidance to clarify and expand the types of evidence that it may evaluate to determine eligibility for extraordinary ability and outstanding researcher EB-1 immigrant visa classifications. The update adds clarifying guidance describing examples of evidence that may satisfy the relevant evidentiary criteria or qualify as comparable evidence, as well as considerations for evaluating such evidence, with a focus on STEM fields. See Sept. 12, 2023, USCIS News Alert: “USCIS Clarifies Guidance for EB-1 Eligibility Criteria,” and Chapter 3, Outstanding Professor or Researcher, of the USCIS Policy Manual.
These ongoing efforts have resulted in an uptick in the approvals of nonimmigrant and immigrant visa applications for high-skilled foreign talent and provide encouragement for foreign-born professors, researchers, scientists and scholars applying to enter and remain in the United States in the coming months, as the Biden-Harris administration continues its efforts through 2024.•
__________
Beth Carlson is counsel at Faegre Drinker Biddle & Reath in the Labor and Employment practice group and Kirat Sandhu is an Indianapolis-based associate at the firm in the Labor & Employment practice group. They are both members of the firm’s Immigration and Global Mobility team. Opinions expressed are those of the authors.
Please enable JavaScript to view this content.