Manage HR Magazine

Aaron Pierce

U.S. immigration law has already undergone a series of developments in 2023, and more are yet to come.

In January, the Biden Administration introduced a set of policies designed to attract and retain international talent in STEM (science, technology, engineering, and mathematics). The U.S. Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP) have pushed progress in implementing work authorization for dependent spouses of visa holders in the E (Treaty Trader or Treaty Investor) and L (Intra-company Transfer) groups. A separate application for work authorization is no longer required. The Department of Justice (DOJ) has stayed involved in its enforcement of the Immigration and Nationality Act's (INA) anti-discrimination provisions, with several settlements in 2021 involving allegations of discrimination preventing discrimination against U.S. workers and a renewed emphasis on investigating claims of document abuse in Form I-9 completion, maintenance, and verification. This overlaps with the continued I-9 flexibility granted by Immigration and Customs Enforcement (ICE) in response to the COVID-19 pandemic, which remains in effect until April 2022. This is a result of Congress's ongoing discussion of possible immigration reform (as most recently reflected in the Build Back Better bill).

Below are some areas to monitor in the coming years:

STEM-RELATED POLICY CHANGES

By the F-1 student, J-1 exchange visitor, O-1 extraordinary ability, and EB-2 National Interest Waiver Immigrant visa categories, the Biden Administration has rolled out new policies to enhance the predictability and clarity of pathways for international STEM talent.

F-1 STEM OPT: Nonimmigrant students pursuing STEM degrees can now gain optional practical training (OPT) in 22 new STEM fields as part of the Department of Homeland Security's STEM Optional Practical Training (OPT). The Federal Register listed new areas such as bioenergy, forestry, human-centered technology design, cloud computing, climate science, earth system science, economics, computer science, geobiology, data science, and business analytics. DHS is developing a procedure for the public to add and remove a degree from the list of designated degrees.

J-1 Exchange Visitors: Exchange Visitors enrolled in predoctoral STEM programs will be able to qualify for a 36-month practical training extension in 2022 and 2023. Increasing STEM opportunities for international students was one of the objectives of the Joint Statement of Principles in Support of International Education.

O-1 Visas: In STEM-related fields, USCIS provided detailed guidance on how entrepreneurs can qualify for the O-1 (Individuals with Extraordinary Ability or Achievement) category. The new guidance expands the definition of a "field" of endeavor to include achievements in distinct but related occupations. For regulatory purposes, it clarifies the use of comparable evidence.

EB-2 NIW Expansion: For professionals with advanced degrees and individuals with exceptional ability, particularly in STEM fields, USCIS has issued updated guidance on adjudicating National Interest Waivers (NIWs). Individuals with advanced degrees in STEM fields, particularly those working on critical and emerging technologies identified by the National Science and Technology Council, qualify for specific evidentiary considerations under the new guidance. Advanced degrees in STEM fields related to the endeavor are also considered "especially positive factors." These indicate that the individual is well-suited for the endeavor.

E AND L SPOUSAL WORK AUTHORIZATION

In November 2021, USCIS issued new guidance clarifying that L-2 and certain E-2 spouses no longer require employment authorization documents (EADs) to work. In response to extraordinarily lengthy delays in obtaining EADs, a court-approved settlement of ongoing litigation resulted in issuing these instructions. Upon entering the United States in L-2 or E-2 status on or after January 31, 2022, spouses can obtain work authorization at the border by requesting a "spouse" designation in their I-94 record.