A bill in the U.S. House of Representatives, “The America Competes Act 2022” proposes incentives for nonimmigrant entrepreneurs to start-up businesses in the United States to make the United States more competitive by encouraging some of the best and the brightest to bring their entrepreneurial talent into the country. The bill proposes a “W” visa that would cover an alien classified as a nonimmigrant entrepreneur with an ownership interest in a start-up business, an alien who is or will be an essential employee of the start-up, and the spouse and children accompanying the entrepreneur and/or essential employee.

To achieve this status, the alien must possess an ownership interest in the start-up of not less than 10%, play a central and active role in the management or operations of the start-up, and possess the knowledge, skills, or experience to substantially assist the start-up with the growth and success of the business. The previous 18 months prior to the alien filing a petition for W status the start-up business must have received at least $250,000 in qualifying investments from one or more qualified investors, and at least $100,000 in qualifying government awards or grants.

The status granted under a W visa is valid for an initial period of three years, with the option for an extension. The nonimmigrant can apply for an additional three-year period if the alien possesses an ownership interest of not less than 5% in the start-up that formed the basis of the initial petition and will continue to play a central and active role in the management or operations of the start-up. In addition, the start-up must have received at least $500,000 in additional qualifying investments from one or more qualified investors, qualifying government awards or grants, or a combination of such funding, created at least five jobs, and have generated not less than $500,000 in annual revenue and averaged 20% in annual revenue growth.

After the first six years on a W nonimmigrant visa, the alien can extend the W visa in two one-year increments for a total of eight years. It appears that USCIS recognizes building a business takes some time and has allotted eight years for this process. Once a nonimmigrant entrepreneur has achieved at least $1,000,000 in revenue for two consecutive years a nonimmigrant holding a W visa can then petition for lawful permanent residence.

For the nonimmigrant entrepreneur in W status to adjust status to obtain lawful permanent residence the nonimmigrant entrepreneur in W status must be present in the United States and have maintained status as a nonimmigrant. The nonimmigrant entrepreneur must have maintained an ownership interest in the start-up business since its founding, and the nonimmigrant entrepreneur must play an active and central role in the operations of the start-up business. The start-up business must have created at least ten qualified jobs, received not less than a total of $1,250,000 in qualifying investments, qualifying government grants or awards, or a combination of such funding, and have generated no less than $1,000,000 in annual revenue in the two years preceding the filing of the petition.

On January 21, the White House issued a Fact Sheet outlining actions that the U.S. Government is undertaking to attract STEM talent to come to and remain in the United States. Important changes to the different visa types are outlined below:

J1 Visas – In support of the recent Joint Statement of Principles in Support of International Education, the U.S. Department of State’s Bureau of Educational and Cultural Affairs announced the Early Career STEM Research Initiative. Under the new Opportunity for Academic Training Extensions for J-1 College and University Students in STEM Fields, Undergraduate and Pre-Doctoral J-1 students who have recently completed STEM-related studies are now eligible for a maximum of 36 months of academic training. This new initiative will run for the next two academic years 2021-2022 and 2022 and 2023.

F1 OPT – In order to attract STEM talent to the United States, the Department of Homeland Security has included 22 new fields of study to the list of STEM programs eligible for the 24 month OPT STEM extension. The added STEM fields include areas of study that are in new multidisciplinary and emerging fields which are vital to supporting the U.S. economy and technological competitiveness. The 22 new fields that have been added are listed in the Federal Registry’s Update to the Department of Homeland Security STEM Designated Degree Program List.

O-1A – U.S. Citizenship and Immigration Services issued a Policy Alert announcing an update to the USCIS policy manual related to “extraordinary ability” (O-1A) nonimmigrant status. The update provided new policy guidance related to the adjudication of O-1A nonimmigrant visas. O-1 beneficiaries who possess a STEM degree. 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. Additionally, it provides examples of possible comparable evidence that may be submitted in support of petitions for beneficiaries working in STEM fields. The guidance, contained in Chapter 4 of Volume 2 of the USCIS Policy Manual is effective immediately.

National Interest Waivers – The USCIS also issued a Policy Alert clarifying how the National Interest Waiver can be used by STEM graduates with an advanced degree. the 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. Of note is the guidance states that “(t)he mere possession of a degree, diploma, certificate or similar award from a college, university, school, or other institution of learning is not by itself considered sufficient evidence of exceptional ability.” To qualify for a National Interest Waiver the petitioner must still meet the requirements set forth in the Matter of Dhanasar. The guidance contained in USCIS Policy Manual Volume 6, Part F, Chapter 5 is effective immediately.

The changes announced by the White House and implemented by the Department of State, Department of Homeland Security and the Department of Education are very important and demonstrate the recognition by the Federal Government of the need to attract and maintain top talent to meet the high demand for STEM educated workers in the U.S. While there are still complex hurdles that need to be cleared to successfully obtain an O-1A or an NIW, the government has for now helped clarify how the USCIS will adjudicate STEM related petitions and has provided Immigration Attorneys additional tools to craft successful arguments to help STEM graduates remain in the U.S.

Please feel free to contact us for a free consult to see how we can help you obtain an O-1 or an NIW under the new USCIS guidelines.

USCIS announced on December 9th that they are temporarily waiving the requirement that the I-693 Report of Medical Examination and Vaccination Record be filed within 60 days of being signed by a Civil Surgeon. The policy is effective immediately and is in effect until September 30th, 2022. The waiver applies to all pending cases, regardless of when the application was submitted or when the Form I-693 was signed. Previously, in August, USCIS extended the validity of the I-693 Medical Exam from two years to four years. These actions on the part of USCIS show that they are making efforts to overcome some of the challenges brought on by the pandemic.

An I-485 lawsuit was recently rejected by U.S. Federal Court. A group of I-485 petitioners recently filed suit against USCIS because of what they felt was an unacceptable delay in the processing of their green cards. The petitioner requested injunctive relief asking the Court to order USCIS to adjudicate their pending I-485 Adjustment of Status to permanent residence by October 31, 2021.  Citing Bian v. Clinton, 605 F.3d 249, 255 (5th Cir. 2010) the Court was not persuaded that the I-485 applicants possessed “a ‘clear and certain’ right to have [their] I-485 application[s] adjusted within [a certain number of days] of [the application’s] filing-or that the USCIS has a ‘plainly prescribed’ duty to process the application within [a set] time frame.”  Consequently, the court denied the plaintiffs’ claim in Kivlekar v. U.S. Citizenship & Immigration Servs., 3:21-cv-2576-B-BN, (N.D. Tex. Oct. 28, 2021).  Unfortunately, this decision means if you are experiencing a delay in reference to your I-485 Adjustment of Status filing you will need to be patient. Cases are being approved on a regular and, in most cases, timely manner and many green cards are still being issued without interviews. As a sign that things are looking up, we just had an I-485 approved within 41 days – filed on 9/27/2021 and approved without an interview on 11/7/2021.

The CDC recently set forth new “Requirements for Immigrant Medical Examinations: COVID-19 Technical Instructions for Civil Surgeons.” Beginning October 1, 2021 persons applying for permanent residence will be required to provide proof that they have been vaccinated against the COVID-19 virus at the time of their medical exam or receive the vaccinations before the medical exam can be completed. The proof of vaccination will be part of the required medical examination. The addition of the COVID-19 vaccination is not surprising and joins a long list of other required vaccinations (tetanus, polio, measles, influenza, etc.). The COVID-19 vaccination requirement will differ from previous requirements in that the entire vaccine series (1 or 2 doses depending on formulation) must be completed. It is not specified which vaccines will be acceptable, however only an official vaccination record or a copy of a medical chart stating that the individual has received the full complement of doses will be accepted as proof.

There are exceptions to the COVID-19 vaccination requirement, the same as for the other required vaccines, including persons who are too young or have contraindications or other health based reasons to not receive the vaccine. There is also a waiver for individuals in countries with no or limited COVID-19 vaccine supplies.

We strongly recommend that anyone who is scheduling a medical exam to be sure they are fully vaccinated for COVID-19 before doing so and that they request the civil surgeon to acknowledge the COVID-19 vaccination in the medical record. While the CDC recommends that civil surgeons should accommodate applicants if they want to complete the remaining components of the exam after they are fully vaccinated against COVID-19, there is no guarantee that the physicians will agree to this accommodation. Additionally, it appears USCIS will require medical exams submitted after October 1 to contain the COVID-19 vaccination confirmation. Cases pending prior to that date should not be affected.