Immigration Quick Takes – February 2022

New Immigration Policy Impacting Sponsorship in STEM Fields

In line with the Biden Administration’s commitment to remove barriers to legal immigration and promote economic growth, the U.S. Department of Homeland Security (DHS) is taking action to improve immigration pathways for foreign nationals engaged in STEM (science, technology, engineering, and mathematics) fields. To date, major changes include:

Expanded Availability of STEM OPT

12 months of Optional Practical Training (OPT) is available to foreign students earning baccalaureate and graduate degrees in the U.S. In addition, foreign students earning degrees in designated STEM fields are eligible for an additional 24 months of full-time Post-Completion OPT and STEM OPT work authorization after completing a qualifying degree program. As of January 2022, DHS has added 22 new fields of study to the STEM OPT Designated Degree Program List, including emerging and multidisciplinary fields such as Cloud Computing, Human-Centered Technology Design, Climate Science, Data Science, and Mathematical Economics.

Updated Guidance on USCIS Assessment of O-1A and NIW Petition Evidentiary Requirements

DHS has updated the U.S. Citizenship and Immigration Services (USCIS) Policy Manual to clarify evidentiary requirements to establish eligibility for nonimmigrant classification in the O-1A category based on “extraordinary ability” and national interest waivers (NIWs) of immigrant petition requirements for foreign nationals with advanced degrees in STEM fields and entrepreneurs.

In particular, in the O-1 context, USCIS now provides specific examples of qualifying evidence to support nonimmigrant petitions in STEM fields and has more clearly defined the process for assessing the totality of evidence submitted in support of these petitions. For example, the USCIS Policy Manual now confirms that “evidence of published material about a beneficiary’s work” need not be singularly focused only on the work, but at a minimum must include “a substantial discussion of the beneficiary’s work in the field.” This guidance directly addresses a conclusion that USCIS commonly asserted in past O-1 denials – that “brief citations or passing references” were insufficient to establish extraordinary ability. This new standard provides a concise explanation what level of reference in a publication does satisfy regulatory criteria.

With regard to NIWs, USCIS has issued expanded guidance regarding the existing three-prong adjudicatory framework for assessing requests to waive labor market tests and job offer requirements, including special considerations for STEM endeavors and new applications of this framework for entrepreneurs. USCIS evaluates NIW requests based on an assessment of whether the intending immigrant’s proposed endeavor: (i) has substantial merit and national importance; (ii) the intending immigrant is well positioned to advance the endeavor; and (iii) on balance, the U.S. will benefit from waiving labor market testing and job offer requirements. In the newly revised Policy Manual, USCIS has clarified their adjudicatory approach to guide petitioners and applicants in this category. For example, the Policy Manual now clarifies that an “endeavor” described in a petition must be more specific than a general occupation, confirming that a petition should describe the intending immigrant’s specific projects and goals, rather than the general duties and responsibilities of a given job or occupation to be performed.

USCIS’ new guidance is effective immediately and is expected to improve adjudicatory trends in the O-1A and NIW categories, making them more consistent to facilitate immigration processes overall.

Updated I-94s for E and L Dependents Work Authorized Incident to Status

In November 2021, DHS changed the structure of employment authorization for certain nonimmigrant dependent spouses, including establishing that dependent spouses of E and L nonimmigrants are work authorized incident to their status in the United States with a properly annotated I-94 record. Under this new system, while an E or L spouse may obtain anan Employment Authorization Document (EAD), it is not required in order for them to be employed in the U.S.

On January 31, 2022, U.S. Customs and Border Protection (CBP) implemented new Class of Admission codes for dependents in the E and L visa categories, as follows:

• E-1S – Spouse of E-1
• E-1Y – Child of E-1
• E-2S – Spouse of E-2
• E-2Y – Child of E-2
• E-3S – Spouse of E-3
• E-3Y – Child of E-3
• L-2S – Spouse of L-1A or B
• L-2Y – Child of L-1A or B.

A valid I-94 record showing admission in E-1S, E-2S, E-3S, or L-2S now serves as acceptable documentation of work authorization for I-9 purposes for the full period of admission. However, because these codes are only applicable to new arrivals, dependent spouses already present in the U.S. cannot correct their I-94s to reflect the updated code indicating work authorization, and they must either depart the U.S. and re-enter to receive an updated I-94 or continue to show a valid EAD or qualifying evidence of a pending EAD renewal to document their work authorization. For dependent spouses with expired visa stamps and valid I-94 records, international travel and re-entry with Automatic Visa Revalidation will allow CBP to issue an updated, annotated I-94 valid for work authorization.

Though it is not a requirement for admission, Parker Gallini recommends that all E and L dependent spouses carry proof of their marriage to the E/L principal nonimmigrant and specifically request admission in the appropriate spousal category when traveling internationally.

USCIS’ New Interfiling Process for Pending Employment-Based AOS Applications

Following the publication of the February 2022 and March 2022 Visa Bulletins, which continue to advance EB-2 Final Action Dates for India and China, USCIS introduced new guidance for transferring the underlying basis of a pending Form I-485, Application to Register Permanent Residence or Adjust Status (AOS).

USCIS allows an AOS applicant to request a transfer of the basis of a pending AOS from one employment-based preference category to another (also known as “interfiling”) where the following criteria are met:

• The AOS applicant has continuously maintained eligibility for adjustment of status;
• The AOS application based on the original Form I-140 is still pending;
• The AOS applicant is eligible for the new immigrant category being requested; and
• A visa is immediately available in the new immigrant category.

To continuously maintain eligibility for adjustment of status, an AOS applicant must not trigger any grounds of inadmissibility, such as violating the terms of an immigration status by working without authorization or committing certain criminal acts, and the position offered in the original and interfiled Form I-140, Immigrant Petitions must remain available. So long as the replacement Form I-140, Immigrant Petition is timely and properly filed and designated as the new basis for the pending AOS, the initial petition supporting the AOS may be withdrawn, denied, or revoked without impacting the AOS, except in cases of fraud. For a visa to be immediately available and the interfiling request to be approvable, the priority date for the requested preference category must be current under Dates for Final Action on the current Visa Bulletin.

For Fiscal Year 2022 (October 1, 2021 through September 30, 2022), USCIS has established a new method to submit interfiling requests, allowing AOS applicants to submit the interfiling request in writing together with a Form I-485 Supplement J, Confirmation of a Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) to a designated address. USCIS will issue a receipt for the Form I-485 Supplement J submitted as a request to interfile but will not issue a written response to confirm the decision made on an interfile requests. USCIS’ treatment of all requests for transfer of the underlying basis of a pending AOS remain discretionary. However, USCIS has strongly recommended that AOS applicants request to interfile instead of filing a new AOS application in the desired preference category to increase the chance of an AOS being approved during the current fiscal year.

Individuals with a pending Adjustment of Status based on a downgraded Form I-140, Immigrant Petition in the EB-3 category may want to consider options for interfiling an EB-2 Form I-140, Immigrant Petition or filing a second Adjustment of Status application. Consult with your Parker Gallini attorney if you have any questions about these options.