On July 22, 2022, the United States Citizenship and Immigration Services (USCIS) updated its policy manual [link] to clarify its position on the consideration of government grants for O1 (aliens of extraordinary ability) visa applicants in STEM fields.
The O1 visa category [see article] is for nonimmigrants of extraordinary ability. A person in a STEM field may, depending on the facts of circumstances of a particular case, apply for an O1A visa in the sciences, education, or business. The USCIS Policy Manual notes that the O visa regulations do not specifically define the term “STEM” (see 2 USCIS-PM M.4(C) n.21 [link]). Thus, the Policy Manual incorporates by reference 8 CFR 214.2(f)(10)(ii)(C)(2)(i), a regulatory provision that deals with optional practical training (OPT) extensions for certain F1 students in STEM fields for the definition of “STEM” in the O1 context:
The term ‘science, technology, engineering or mathematics field’ means a field included in the Department of Education’s Classification of Instructional Programs taxonomy within the two-digit series or successor series containing engineering, biological sciences, mathematics, and physical sciences, or a related field. In general, related fields will include fields involving research, innovation, or development of new technologies using engineering, mathematics, computer science, or natural sciences (including physical, biological, and agricultural sciences).
Thus, broadly speaking, the new O1 guidance applies to applicants for O1 visas whose applications are related to one of the fields set forth in the regulation governing STEM OPT extensions [see article]. The new guidance deals specifically with STEM-field O1 applicants who performed research under a U.S. government grant or stipend. The guidance states that if “[t]he record establishes that the [O1] beneficiary is named as an investigator, scientist, or researcher on a peer-reviewed and competitively funded U.S. government grant or stipend for STEM research,” then that evidence “can be a positive factor indicating a beneficiary is among the small percentage at the top of the beneficiary’s field.”
On order for an alien to receive a visa in the O1A category, the evidence must establish that he or she has extraordinary ability in the sciences, arts, education, business, or athletics (8 CFR 214.2(o)(1)(ii)(A)(1)). This requires proving that the beneficiary “has sustained national or international acclaim.” An O1 beneficiary in a STEM field would presumably be seeking an O1 visa for extraordinary ability in the sciences, education, or business. The new guidance makes clear that if the applicant was named as an investigator, scientist, or researcher “on a peer-reviewed and competitively funded U.S. government grant or stipend for STEM research,” that may be evidence that the beneficiary “has sustained national or international acclaim” — specifically that he or she is one of the top people in the field. The extent to which a grant may be evidence of extraordinary ability will depend on the particular nature of the grant and the overall factions of the specific case — but the USCIS Policy Manual makes clear that USCIS adjudicators are to carefully consider evidence of such grants in the context of O1 STEM cases. While the EB1A immigrant visa category for aliens of extraordinary ability is distinguishable in some respects from the nonimmigrant O1 category, this new guidance may also be instructive to some extent in EB1A cases involving petitioners in STEM fields.
Applying for an O1 visa is an evidence-intensive process wherein the petitioner bears the burden of proving that the beneficiary meets the stringent extraordinary ability requirements. Anyone seeking an O1 visa is well-advised to first consult with an experienced immigration attorney for case-specific guidance on whether that visa category fits the facts of the beneficiary’s career and is amenable to his or her employment goals and ambitions in the United States.
