U.S. Citizenship and Immigration Services Weekly Digest Bulletin

USCIS Updates Guidance on National Interest Waivers 01/21/2022 U.S. Citizenship and Immigration Services today announced updated guidance on adjudicating requests for “National Interest Waivers” regarding job offer and labor certification requirements for certain advanced degree professionals and individuals of exceptional ability. This includes discussing the unique considerations for persons with advanced degrees in science, technology, engineering, and math (STEM) fields and entrepreneurs. Consistent with this Administration’s goal of removing barriers to legal immigration under President Biden’s Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, USCIS is clarifying how the national interest waiver can be used by STEM graduates and entrepreneurs, as well as the significance of letters from governmental and quasi-governmental entities. The updated guidance also serves to promote effective and efficient processing of benefits consistent with the executive order. An employer seeking to hire a noncitizen must generally obtain a permanent labor certification from the Department of Labor that proves there are no qualified U.S. workers for the position they are seeking and that their employment will not adversely affect similarly employed U.S. workers. The noncitizen may, however, seek a waiver of a job offer, and of the labor certification, if it is in the interest of the United States. Individuals seeking a national interest waiver must show evidence of an advanced degree or exceptional ability and must also meet three factors that USCIS uses to determine, in its discretion, whether it is in the national interest that USCIS waive the requirement of a job offer, and thus the labor certification. The three factors USCIS considers for a national interest waiver are whether: The person’s proposed endeavor has both substantial merit and national importance; The person is well positioned to advance the proposed endeavor; and It would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements. Those seeking a national interest waiver may self-petition using Form I-140, Immigrant Petition for Alien Worker.  This guidance, contained in Volume 6 of the Policy Manual, is effective immediately. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance. Visit the Policy Manual for Comment page to comment on this update.  USCIS Provides Clarifying Guidance for O-1 Petitions with a Focus on STEM Fields 01/21/2022 U.S. Citizenship and Immigration Services today issued policy guidance clarifying how it evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability, with a focus on petitions filed for individuals in science, technology, engineering, or math (STEM) fields, as well as how USCIS determines whether an O-1 beneficiary’s prospective work is within their area of extraordinary ability or achievement. Individuals of extraordinary ability in the sciences, education, business, or athletics may be eligible for O-1A classification. 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, and it provides examples of possible comparable evidence that may be submitted in support of petitions for beneficiaries working in STEM fields. In addition, the update explains that when evaluating whether an individual of extraordinary ability is coming to work in their “area of extraordinary ability,” officers will focus on whether the prospective work involves skillsets, knowledge, or expertise shared with the occupation(s) in which the individual garnered acclaim. Visit the Policy Manual for Comment page to comment on this update. For more information, see the policy manual update.