On January 21, 2022, the White House announced that the Departments of State and Homeland Security are undertaking several new actions to help attract to the U.S. and retain international talent in the fields of science, technology, engineering, and mathematics (“STEM”). The Biden-Harris administration stated that, “These actions will allow international STEM talent to continue to make meaningful contributions to America’s scholarly, research and development, and innovation communities.”
Specifically, DHS and DOS announced the following initiatives:
The U.S. Department of State’s Bureau of Educational and Cultural Affairs (ECA) is announcing an “Early Career STEM Research Initiative,” to facilitate non-immigrant BridgeUSA exchange visitors coming to the United States to engage in STEM research through research, training or educational exchange visitor programs with host organizations, including businesses. ECA is also announcing new guidance that will facilitate additional academic training for undergraduate and graduate students in STEM fields on the J-1 visa for periods of up to 36 months.
The Department of Homeland Security (“DHS”) Secretary Mayorkas announced that 22 new fields of study are now included in the STEM Optional Practical Training (OPT) program through the Student and Exchange Visitor Program (SEVP). The added fields of study are primarily new multidisciplinary or emerging fields, and are critical in attracting talent to support U.S. economic growth and technological competitiveness.
DHS is issuing an update to its policy manual related to “extraordinary ability” (O-1A) nonimmigrant status regarding what evidence may satisfy the O-1A evidentiary criteria. In this update, DHS is clarifying how it determines eligibility for immigrants of extraordinary abilities, such as PHD holders, in the science, technology, engineering, or math (STEM) fields. The new update provides examples of evidence that may satisfy the O-1A evidentiary criteria and discusses considerations that are relevant to evaluating such evidence, with a focus on the highly technical nature of STEM fields and the complexity of the evidence often submitted. The update also emphasizes that, if a petitioner demonstrates that a particular criterion does not readily apply to their occupation, they may submit evidence that is of comparable significance to that criterion to establish sustained acclaim and recognition. Additionally, it provides examples of possible comparable evidence that may be submitted in support of petitions for beneficiaries working in STEM fields.
DHS is issuing an update to its policy manual on how U.S. Citizenship and Immigration Services (USCIS), a DHS component, adjudicates national interest waivers for certain immigrants with exceptional abilities in their field of work. The USCIS policy update clarifies how the national interest waiver can be used for persons with advanced degrees in STEM fields and entrepreneurs, as well as the significance of letters from governmental and quasi-governmental entities. This update will promote efficient and effective benefit processing as USCIS reviews requests for national interest waivers. This effort is consistent with the Biden-Harris Administration’s priorities to restore faith in the legal immigration system.
If you have questions on how these new initiatives impact your immigration case, please contact SPS Immigration.
USCIS announced that effective Tuesday, December 28th, 2021, certain healthcare workers who have a pending Employment Authorization Document (EAD) renewal application (Form I-765, Application for Employment Authorization) and whose EAD expires in 30 days or less or has already expired, can request expedited processing of their EAD application. Eligible Healthcare workers should call the USCIS Contact Center at 800-375-5283 (TTY 800-767-1833) to request this expedited processing.
To determine whether you are a qualifying healthcare worker, review the DHS advisory memorandum “Healthcare / Public Health” section, pages 7-9. Eligible Healthcare workers must provide evidence of their eligibility as a qualified Healthcare worker.
If you have questions about how this may impact your case, please contact SPS Immigration.
On October 25, 2021, President Biden issued Presidential Proclamation 10294 revoking the country-specific geographic travel restrictions and mandating COVID-19 vaccines for all international air travelers to the U.S. Starting 12:01am November 8, 2021, noncitizen nonimmigrant air travelers to the U.S. must be fully vaccinated as defined by the CDC.
CDC is currently accepting vaccines approved/authorized by the FDA and WHO, including:
Janssen/Johnson & Johnson (Single Dose)
Individuals will be considered fully vaccinated after two weeks of receipt of the last dose of a vaccine, the first dose of an approved single-dose vaccine, or any combination of two doses of an approved vaccine (mix and match). Under very limited exceptions, noncitizen nonimmigrants who are not fully vaccinated may enter the U.S. by air travel if they agree and arrange to become fully vaccinated against COVID-19 after arriving in the U.S.
The Proclamation does not apply to United States citizens, lawful permanent residents, or those traveling on immigrant visas. Additionally, the following groups are exempt, and should comply with CDC requirements on how to evidence eligibility for the exception:
Children:Children under the age of 18.
Clinical Trials: Those who have participated or are participating in clinical trials for COVID-19 vaccination, as determined by the CDC Director.
Contraindications: Those for whom approved COVID-19 vaccination is medically contraindicated. A letter must be provided to the airline from a licensed physician documenting the contraindication before boarding.
Humanitarian and Emergency Exceptions: Those granted humanitarian or emergency exceptions by the Director of the CDC in limited circumstances for individuals who need to travel to the U.S. for their health and safety and are unable to complete the vaccine requirement before doing so.
Limited Vaccine Availability: Citizens of a country with less than 10% of the population vaccinated with any available COVID-19 vaccine, who seek to enter the United States pursuant to a nonimmigrant visa, except for a B-1/B-2 visa.
Members of the U.S. Armed Forces and their Spouses and Children: These individuals will need to show a U.S. military identification document, such as a military ID, Common Access Card, DEERS ID card, or other proof that the individual is a member or spouse/child of a member of the U.S. Armed Forces.
National Interest Exceptions: Those whose entry would be in the national interest, as determined by the Secretaries of State, Transportation, Homeland Security or their designees.
Diplomats or Persons on Official Government Travel: Individuals seeking entry pursuant to the following visa classifications: A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO classifications).
United Nations Travel: Individuals whose travel falls within the scope of section 11 of the UN Headquarters Agreement or who is traveling pursuant to United States legal obligation.
Sea Crew Members: Individuals seeking entry as sea crew members traveling pursuant to C-1 and D visas, provided the crew member adheres to industry standards for the prevention of COVID-19.
Airline Crew Members: Individuals seeking entry to the United States as a crew member on official duty assigned by the airline or aircraft operator that involves operation of aircraft, or the positioning of crew not operating the aircraft (i.e., on “deadhead” status, or are maintenance personnel or contractors whose travel purpose is for flight operation or the safety of the aircraft, are also exempt if they are operating under an air carrier’s or operator’s occupational health and safety program.
All vaccinated individuals, including American citizens, lawful permanent residents, and foreign nationals traveling to the United States on immigrant or nonimmigrant visas, will be required to produce a negative viral test (NAAT or PCR) result within three calendar days of travel to the United States, or before boarding the first flight in a series of connection to the United States.
Unvaccinated travelers, whether U.S. citizens, lawful permanent residents, or those who qualify for an exception under the Proclamation, will be required to show documentation of a negative test taken within one day of travel to the United States.
Children have special testing protocols. Children between the ages of 2 and 17 will be required to take a pre-departure test as follows:
If the child is traveling with a fully vaccinated adult, but is not vaccinated, the child can show proof of a negative viral test taken within three calendar days before departure.
If the child is traveling alone, the child will be subject to the same testing requirements as unvaccinated adults.
The CDC is charged with setting the parameters of these entry requirements so it is important to refer frequently back to the CDC guidance noted above. If you have questions on how these travel requirements may impact your upcoming travel, please contact SPS Immigration.
The Department of Homeland Security (“DHS”) will be publishing a notice tomorrow in the federal register that automatically extends the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through December 31, 2022, from the current expiration date of October 4, 2021.
Please let SPS Immigration know if you have questions on how this impacts your immigration status.
The Center for Disease Control and Prevention (“CDC”) announced August 19, 2021 that applicants for adjustment of status to permanent residence in the U.S. must obtain the COVID-19 vaccine series starting October 1, 2021. The CDC is providing waivers for individuals who are too young to receive the vaccine (currently, children under the age of 12), contraindications, or if the vaccine is not routinely available. Applicants may also request a waiver due to religious or moral convictions. Applicants who otherwise refuse the COVID-19 vaccine series in part or entirety will be inadmissible to the United States.
USCIS will be updating the Form I-693 and its instructions, but applicants for permanent residence are encouraged to immediately complete the COVID-19 vaccine series as applicants must complete the COVID-19 vaccine series and provide documentation of vaccination to the civil surgeon in person before completion of the medical examination. This requirement is for anyone who received their medical exam on or after October 1, 2021.
If you have questions about how this may impact your immigration case, please contact SPS Immigration.
On July 28, 2021, USCIS randomly selected additional H-1B cap registrations that were previously submitted for FY 2022 after determining that it did not receive enough filed H-1B petitions to reach the FY 2022 numerical allocations. The H-1B petition filing period based on this second round of registration selections will begin on August 2, 2021 and close on November 3, 2021.
SPS Immigration is checking the USCIS portal and will notify clients if they have additional cases selected in this second lottery round. If you are a current FY 2022 H-1B lottery client, SPS will notify you if we have updates.
The American Immigration Lawyers Association (AILA) recognizes Sarah Peterson of Minneapolis, MN, with the 2021 Susan D. Quarles AILA Service Excellence Award, in recognition of her outstanding service, over a period of years, in advancing the mission, development, and value of AILA for its members and the public it serves.
One of the nomination letters highlighted the concept known as “servant leadership” and lauded Ms. Peterson’s embodiment thereof: “Servant leadership is a leadership philosophy in which the main goal of the leader is to serve. A servant leader shares power, puts the needs of others first, and helps people develop and perform as highly as possible. A servant leader exists to lead others through their service…Over the better part of the last decade, one would be hard pressed to name another member of AILA who has so tirelessly worked for the betterment of the membership with so much distinction.”
Sarah K. Peterson is the founder of SPS Immigration PLLC based in Minneapolis, MN. Her employment-based practice focuses on physicians, academia, start-ups, and high-tech companies.
Ms. Peterson actively participates in AILA efforts on both a local and national level. She currently serves as Chair of AILA’s Department of Labor (DOL) liaison committee since 2017 and has been an active Elected Director on the AILA Board of Governors since 2012. She previously served on AILA national Liaison committees with the California and Nebraska USCIS Service Centers, chaired and served as a member of AILA’s Healthcare Professionals Committee, and chaired the Minnesota/Dakotas Chapter of AILA.
Recognized in the 2020 and 2021 editions of The Best Lawyers in America, she has also been recognized as one of the Best Lawyers in Minnesota 2020, as one of 40 Up and Comers in Employment Law by HRE/LawDragon for several years and since 2020 in LawDragon 500 Leading U.S. Corporate Employment Lawyers.
Ms. Peterson is listed in the International Who’s Who of Corporate Immigration Lawyers since 2014 including selection since 2018 as a ‘Thought Leader,’ and was one of Minnesota’s Lawyer’s Up and Coming Attorneys for 2010.
She is a three-time recipient of AILA’s Presidential Commendation for her service chairing AILA’s DOL committee. She was a contributing author to AILA’s Business Immigration Law & Procedure, second edition, frequently speaks with the press, and travels internationally to speak on employment-based immigration.
Ms. Peterson is an Adjunct Professor at the University of Minnesota Law School and holds a joint law degree and master’s in public policy from the University of Minnesota Law School and the Hubert H. Humphrey Institute of Public Affairs.