On Jan. 21, 2022, U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance in the USCIS Policy Manual to address national interest waivers for advanced degree professionals or persons of exceptional ability. This update clarifies how the national interest waiver can be used by science, technology, engineering, and mathematics (STEM) graduates and entrepreneurs.
The Immigration and Nationality Act (INA) provides that an employer can file an Immigrant Petition for Alien Worker (Form I-140) for individuals of exceptional ability or members of the professions with an advanced degree. Normally, this process starts with the employer obtaining a labor certification from the U.S. Department of Labor, which demonstrates there are no qualified U.S. workers for the position being sought. However, USCIS may waive the requirement of a job offer and labor certification if the proposed endeavor is in the national interest. This national interest waiver essentially allows immigrants to petition for themselves, without an employer.
Individuals seeking a national interest waiver must show evidence of an advanced degree or exceptional ability and must also meet the following three prongs:
- The individual’s proposed endeavor has both substantial merit and national importance;
- The individual is well-positioned to advance the proposed endeavor; and
- It would be beneficial to the United States to waive the job offer and thus labor certification.
With the policy update guidance, there are specific considerations relating to STEM degrees and fields. USCIS recognizes the importance of STEM fields and degrees focused in critical and emerging technologies and other areas important to U.S. competitiveness or national security. To identify a critical and emerging technology, USCIS officers will review a list of critical and emerging technology subfields published by the Executive Office of the President, by the National Science and Technology Council or the National Security Council. With respect to the first prong, all cases must demonstrate that a STEM endeavor has both substantial merit and national importance.
With respect to the second prong, the individual’s education and skillset will be relevant to whether the individual is well-positioned to advance the endeavor. USCIS will consider an advanced degree, especially a Doctor of Philosophy (Ph.D.) in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM areas important to U.S. competitiveness or national security. Further, the new policy guidance clarifies that even if the endeavor is in a theoretical field in STEM such as theoretical mathematics or physics, such endeavors may still further U.S. competitiveness and national security.
Finally, with respect to the third prong, USCIS will place more value where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness or when the petition is supported by letters from interested U.S. government agencies.
The policy update guidance also lays out specific considerations for entrepreneurs. Under the new guidance, USCIS officers should consider that many entrepreneurs do not follow the traditional timeline as those in more technical fields such as STEM. As such, entrepreneur petitioners may submit the following types of evidence to establish that the endeavor has substantial merit and national importance, that the petitioner is well positioned to advance the endeavor, and that, on balance, it would be beneficial to waive the job offer and thus labor certification requirements:
- Evidence of Ownership and Role in the U.S.-Based Entity;
- Degrees, Certificates, Licenses, Letters of Experience;
- Incubator or Accelerator Participation;
- Awards or Grants;
- Intellectual Property;
- Published Materials about the Petitioner, the Petitioner’s U.S.-Based Entity or Both;
- Revenue Generation, Growth in Revenue, and Job Creation;
- Letters and Other Statements from Third Parties such as relevant government entities, outside investors, or established business associations with knowledge of the research, products or services developed by the petitioner, the petitioner’s entity, or both; or the petitioner’s knowledge, skills, or experience that would advance the proposed endeavor.
The new policies are designed to make the national interest waiver more broadly available to foreign nationals with STEM backgrounds who are pursing endeavors in the national interest of the United States, including entrepreneurs.