A Broader Immigration Pathway for Scientific Innovators and Entrepreneurs.

The Biden administration recently announced important immigration policy revisions and clarifications designed to help attract and retain foreign nationals working in science, technology, engineering, and mathematics (STEM). These recent changes affect F-1 and J-1 visa holders in STEM academic fields, as well as STEM workers seeking the O-1 extraordinary ability visa and permanent residency under the National Interest Waiver (NIV) program. At the same time, Congress has taken its own steps to facilitate the ability of foreign-born entrepreneurs and Ph.D.’s in STEM fields to live and work in the U.S.

First, for the Optional Practical Training (OPT) program, which allows F-1 visa holders with a STEM degree to obtain work authorization for up to 3 years, the definition of a STEM degree was expanded to include 22 new academic fields. These include economics and computer science, mathematical economics, data science, business, and financial analytics, all fields vital to business innovation and entrepreneurship. In addition, the State Department now allows J-1 undergraduates and recent graduates in STEM fields to obtain up to 3 years of optional practical training, up from a previous maximum of 18 months. The State Department has also announced that it is launching an “Early Career STEM Research Initiative” to allow J-1 exchange visitors coming to the US to engage in STEM research through training or educational exchange visitor programs including businesses.

Moreover, the USCIS has provided new guidelines which specifically address O-1A visa eligibility for foreign nationals in STEM fields and explain how O-1A evidentiary criteria should be applied to them. This focus on foreign STEM workers should greatly improve their ability to obtain such visas and thereby provide an important additional option to the H-1B visa program with its annual quota of 85,000 visas and lottery system.

Similarly, the USCIS has issued new guidance to agency adjudicators to determine whether a foreign national pursuing permanent residency through the EB-2 visa program is eligible for a discretionary national interest waiver of the cumbersome job offer and labor certification requirements. These new instructions and clarifications are likely to make this program more widely available to foreign nationals with STEM backgrounds.

At the same time, Congress has begun to prioritize immigration policies that foster scientific innovation and entrepreneurship. On January 25, 2022, the House Rules Committee added the LIKE (“Let Immigrants Kickstart Employment”) Act to the Senate’s America COMPETES Act. This bill creates a new temporary visa for foreign-born entrepreneurs and allows the founder of a start-up to apply for and receive lawful permanent residency if the entity meets certain additional benchmarks.

In support of this bill, Jeff Farrah of the National Venture Capital Association (NVCA) states that “immigrant entrepreneurs have created some of the most iconic American companies. But our immigration laws make it too hard for foreign-born entrepreneurs to launch new, high-growth companies in the U.S. A startup visa would provide a dedicated visa category that will allow the world’s best entrepreneurs to create the next generation of great companies that will ensure the U.S. remains the global leader in technology and innovation.”

So, what does this new government support for scientific innovation and entrepreneurship mean for STEM-educated foreign nationals? Certainly, these Biden administration policy revisions offer important additional employment options in the U.S., as well as potentially greater access to nonimmigrant visas and permanent residency. At a minimum, these initiatives will provide more clarity and predictability in the adjudication of STEM-related immigration applications. In addition, whether or not the proposed bill with the “immigrant startup visa” becomes law, the support it has received in Congress and the discussions it has generated, are an important start. Revising our immigration policy to generously support foreign-born scientists and entrepreneurs in order to promote scientific rigor, innovation and the accompanying economic opportunities for our citizens, is a clear win for all of us.

By The Immigration Post – Guest Editor

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