An early version of this table was originally published in “Meeting US Defense Science and Engineering Workforce Needs: A Progress Report,” a forthcoming working paper in “Entrepreneurship and Innovation Policy and the Economy, volume 4, Chicago: University of Chicago Press,” last updated August 20, 2024.
This table summarizes select actions taken by the Biden administration to policies and regulations that benefit international advanced STEM degree holders in the United States.
| Agency Policy | Actions | Benefits |
|---|---|---|
| STEM OPT DHS guidance STEM OPT Degree List Update, 2022 STEM OPT Degree List Update, 2023 STEM OPT Degree List Update, 2024 | Update the Designated Degree Program List for post-completion STEM Optional Practical Training adding 22 fields in January 2022 and 8 fields in July 2023, to reflect new, largely multidisciplinary fields of study, expanding the STEM fields in which international students may remain in the US and work after earning a U.S. STEM degree. | Optional Practical Training (OPT) for STEM grads allows up to three years of employment in the US after graduation. The annual nominations process will allow DHS to keep the degree list current for STEM OPT. |
| O-1A DHS guidance O-1A Policy Manual Guidance and Appendix, 2022 | January 2022 USCIS Policy Manual update that, for the first time since the O-1A category was created by Congress in 1990, provides written guidance as to how STEM PhDs may qualify, by updating the USCIS Policy Manual, including an Appendix table, to clarify for both agency adjudicators and stakeholders how USCIS evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability. | The O-1A nonimmigrant visa category for extraordinary ability is uncapped, without any per country limits, with no maximum period of stay. |
| NIW DHS guidance NIW Policy Manual Guidance, 2022 | January 2022 USCIS Policy Manual update that, for the first time since the National Interest Waiver category for green card eligibility was created 1990 by Congress, provides written guidance on how STEM Masters or PhDs may qualify for green card eligibility if their work is of substantial merit and in the national interest, by updating the USCIS Policy Manual to address requests for national interest waivers for advanced STEM degree professionals, providing some objective criteria for when work is typically in the national interest, such as when a noncitizen is working in a critical and emerging technology field or an endeavor tied to the annual R&D priorities identified by OSTP and OMB. | Individuals approved for NIW classification for Employment-Based Second Preference advanced degree immigrants are largely self-petitioned and not tied to a sponsoring employer for their permanent residency process, and are the beneficiaries of a more certain and timely process to secure eligibility confirmation from DHS. |
| J-1 Researcher DOS guidance STEM Research Initiative, 2022 | Utilize existing State Department regulations governing exchange programs for researchers and scholars, to allow entities designated by State, including universities as well as nonprofits, to sponsor foreign researchers to be employed in private industry STEM R&D, including technology ventures spun off by universities to commercialize technology. The STEM Initiative explains that foreign-born STEM experts, at all academic levels, may be in the US to conduct and participate in STEM R&D efforts, hosted by industry on J-1 visas, including STEM post-docs who do not need to be solely on campus. | J-1 visas for researchers carry a 5-year validity period, without a congressionally established numerical limit or per country caps. Significant numbers of foreign-born STEM Masters and PhDs could be hosted by companies, adding a global perspective to R&D teams at US firms. Relevant given that about 90% of experimental STEM development in the US and approaching 60% of US applied STEM research is funded by and performed by companies. |
| H-1B research cap exemptions DHS regulation H-1B Modernization Notice of Proposed Rule Making, 2023 (at p. 72883-86 and 72962-63 of NPRM) – in process | EO 14410, at Section 5.1(d), requires the Department of Homeland Security to continue its rulemaking process to modernize the H-1B program and enhance its integrity and usage. | The NPRM includes a proposal to clarify whenever research is a fundamental activity of a nonprofit that organization might qualify as an H-1B cap exempt entity and whenever industry partners with nonprofit or university research and an H-1B professional employee of a company spends at least 50% of her time on that collaborative effort that individual might be cap exempt. |
| J-1 Exchange Visitor Skills List DOS regulation Final rule at OIRA for review, 2024 – in process | EO 14410, at Section 5.1(b), requires the Department of State to consider rulemaking establishing new criteria to designate countries and skills on the Exchange Visitor Skills List as it relates to the 2-year foreign residence requirement, including those skills that are critical to the US, and consider publishing updates to the 2009 Skills List. | The Skills List applies when DOS finds that skills being developed in the US by a J-1 visa holder are “clearly required” for the development of the J-1 visa holder’s home country. Currently 82 countries have chosen to participate in the Skills List. A revised Skills List methodology might allow more STEM experts from more countries to follow the science, technology, or engineering wherever it takes them. |
| Schedule A DOL regulation Request For Information, 2023 – in process | EO 14410, at Section 5.1(e), requires the Department of Labor, for purposes of considering updates to the so-called Schedule A list of occupations, to publish a Request for Information to identify AI and other STEM-related occupations for which there is an insufficient number of ready, willing, able, and qualified US workers. | A modernized Schedule A utilizing a self-executing, data-based methodology to identify types of employment for which there is relative scarcity in the US would allow a streamlined permanent residency process for those noncitizens working in those occupations, and would help the US understand educational or skills gaps to improve training and education for the domestic workforce. |
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