USCIS Analysis in EB2 NIW Cases: A Critical Perspective on STEM Professionals

Introduction

The USCIS - United States Citizenship and Immigration Services plays a crucial role in shaping the future of innovation and competitiveness in the United States through its decisions on immigrant visas, particularly in the EB2 category with NIW - National Interest Waiver. This category is especially relevant for highly qualified professionals in STEM - Science, Technology, Engineering, and Mathematics fields. However, USCIS's current interpretation of "national interest," based on the "Matter of Dhanasar" precedent, has raised significant concerns about its adequacy to the country's economic and technological needs.

This essay critically examines USCIS's approach, arguing that its restrictive interpretation of national interest may be at odds with the real needs of the American economy and with the government's own policies that emphasize the importance of STEM professionals for national competitiveness.

The legal context: Matter of dhanasar and its criteria

The "Matter of Dhanasar" case established a new framework for evaluating EB2 NIW petitions in 2016. According to this decision, the petitioner must satisfy three criteria:

1. The foreign national's proposed endeavor has both substantial merit and national importance;
2. The foreign national is well positioned to advance the proposed endeavor;
3. It would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

While these criteria were designed to provide a more flexible and forward-looking assessment, USCIS's practical interpretation has often been criticized for being excessively restrictive, especially in relation to the first criterion. This gives excessive discretion to the immigration officer in analyzing cases, causing many highly qualified professionals to have their immigration claims refused, even though they are highly qualified in strategic areas for the American economy.

Detailed analysis of the dhanasar criteria

Substantial merit and national importance

This criterion has been the most controversial in USCIS's application. The agency often interprets "national importance" narrowly, requiring the petitioner to demonstrate an immediate and significant impact on a national scale. However, this interpretation does not consider the cumulative and long-term impact of STEM professionals.

The potential rejection of an Einstein-like figure under current criteria serves as a stark reminder of the shortsightedness of requiring immediate, measurable national impact from STEM professionals. It highlights the need for a more nuanced, forward-looking approach in evaluating the potential contributions of highly skilled immigrants.

This perspective calls for a reevaluation of the EB2 NIW criteria to better accommodate the often abstract and long-term nature of scientific research and innovation. A more flexible interpretation that considers the potential for long-term, transformative impact would not only have ensured a place for Einstein in the 1930s but would also better serve the United States' current and future interests in maintaining its position as a global leader in science and technology.

The current USCIS criteria: A perspective through the lens of history

In analyzing the current USCIS criteria for determining "national interest" in EB2 NIW cases, a thought-provoking question arises: Would Albert Einstein, one of the most influential scientists in history, meet these criteria if he were applying today?

Consider Einstein's circumstances in 1933 when he immigrated to the United States. At that time, much of Einstein's work, including his revolutionary theories of special and general relativity, was highly theoretical with no immediate practical applications. The full impact of his work on physics, and subsequently on technology and the broader society, would not be realized for decades.

Under the current interpretation, USCIS adjudicators might argue that Einstein's work, while intellectually significant, lacks immediate applicability to U.S. national interests. They might question how his theoretical physics research directly addresses current national needs or how it would more immediately benefit the United States compared to the work of other physicists.

This hypothetical scenario underscores a critical flaw in the current approach: it fails to account for the long-term, often unpredictable nature of scientific breakthroughs. Many groundbreaking discoveries and theories, like Einstein's, may not demonstrate immediate practical applications but can fundamentally reshape our understanding of the world and lead to transformative technologies decades later.

Focus on individual vs. collective impact

The current approach seems to prioritize projects or individuals that can demonstrate an immediate and substantial national impact. However, this ignores the cumulative impact of many STEM professionals working in diverse fields and projects.

This myopic view fails to recognize that major technological advances often result from the convergence of multiple lines of research and development. For example, the development of mRNA vaccines, crucial in responding to the COVID-19 pandemic, was based on decades of seemingly unrelated research in molecular biology, nanotechnology, and data science.

Disregard for global trends

Global competition for STEM talent is intensifying. Countries like China and India are producing a much larger number of STEM graduates than the U.S. USCIS's restrictive approach may be inadvertently undermining the U.S.'s ability to attract and retain crucial global talent.

Restrictive interpretation of "National Interest"

USCIS appears to be applying an overly restrictive interpretation of what constitutes "national interest." This approach not only contradicts the wide range of government evidence highlighting the critical importance of STEM professionals but also ignores the interconnected and long-term nature of scientific and technological progress.

For example, a researcher working on a seemingly obscure aspect of quantum physics may not demonstrate an immediate national benefit, but their work may be fundamental to future advances in quantum computing, which has significant implications for national security and economic competitiveness.

It's important to consider, however, that USCIS's approach may be motivated by legitimate concerns. The agency has the responsibility of ensuring that the immigration system is not abused and that the benefits granted truly serve the national interest.

The USCIS approach to EB2 NIW: A flawed savings analogy

The current approach of USCIS in adjudicating EB2 NIW cases, particularly for STEM professionals, can be likened to a fundamentally flawed savings strategy. This analogy illuminates the shortsightedness of the agency's interpretation of "national interest" and its potential long-term consequences for American innovation and competitiveness.

Imagine a scenario where an individual aims to accumulate $1 million in savings, a goal that undoubtedly represents a substantial financial achievement. Now, consider a dedicated saver who consistently deposits $100 every day. In the USCIS's current paradigm of evaluation, this person's efforts would be rejected because each individual $100 deposit falls far short of the $1 million target.

This rejection, of course, defies logic and basic arithmetic. It fails to account for the cumulative effect of these regular contributions. Over time, these $100 deposits would indeed accumulate to reach the $1 million goal. In fact, in less than 28 years, this steady approach would successfully achieve the target.

The USCIS's current adjudication process for EB2 NIW petitions often mirrors this flawed reasoning. When evaluating a STEM professional's potential contribution to national interest, the agency frequently focuses on immediate, large-scale impact. It seeks the equivalent of a $1 million deposit, overlooking the value of consistent, incremental contributions that, in aggregate, can yield substantial national benefits.

Moreover, this approach fails to account for the often unpredictable nature of scientific discovery and technological innovation. Today's seemingly abstract research can become tomorrow's groundbreaking application, much like compound interest can dramatically accelerate savings growth over time.

To rectify this, the USCIS needs to adopt a more nuanced, long-term perspective in its adjudication process. It should recognize that the national interest is served not only by immediate, large-scale contributions but also by the steady accumulation of knowledge, skills, and incremental advancements brought by STEM professionals.

A more appropriate approach would be to evaluate the potential of STEM professionals to contribute consistently over time to their fields and, by extension, to the national interest. This would be akin to assessing a savings plan based on the consistency of contributions and the potential for long-term growth, rather than expecting the entire sum to materialize at once.

By shifting to this perspective, the USCIS would better align its adjudication process with the realities of scientific progress and technological innovation. It would recognize that the national interest is best served by cultivating a rich, diverse ecosystem of STEM talent, where each professional represents a valuable "deposit" in America's intellectual and innovative capital.

The national importance of STEM professionals: Government evidence

Numerous government reports and studies highlight the critical importance of STEM professionals to the U.S. economy and national security. Some examples include:

1. NSB - National Science Board - "The State of U.S. Science and Engineering 2020" This report emphasizes that "progress in science, technology, and innovation is fundamental to the nation's health, prosperity, and security." It highlights that the U.S. is losing its competitive edge in STEM to countries like China.
2. BLS - Bureau of Labor Statistics - "Employment in STEM Occupations" BLS projections indicate that STEM occupations will grow by 8% between 2019 and 2029, more than double the rate of all other occupations. This underscores the growing demand for these professionals.
3. NSF - National Science Foundation - "Science and Engineering Indicators 2020" This report highlights that the U.S. continues to rely heavily on international STEM talent, with foreigners representing a significant portion of advanced degrees and the workforce in critical fields.
4. DHS - Department of Homeland Security - "STEM Designated Degree Program List" The continuous expansion of this list by DHS reflects the government's recognition of the importance of attracting and retaining international talent in a wide range of STEM fields.
5. U.S. Department of Defense - "Assessing and Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the United States" The DoD has identified the shortage of STEM talent as a threat to national security. The report highlights the critical need for STEM professionals to maintain the U.S.'s technological advantage in defense.

These reports consistently emphasize the crucial role of STEM professionals in maintaining U.S. technological leadership, economic competitiveness, and national security.

Implications of the current approach

1. Loss of Global Talent Highly qualified professionals may choose to pursue opportunities in other countries with more welcoming immigration policies for STEM talent.
2. Weakening of Technological Leadership The inability to attract and retain top global talent may gradually erode the U.S.'s position as a global leader in innovation and technology.
3. Economic Impact The shortage of STEM professionals can slow economic growth, particularly in high-tech sectors that are crucial for the future economy.
4. National Security Concerns The U.S. National Security Council has identified several critical and emerging technologies as essential for national security. Attracting and retaining global talent in these areas is crucial to maintaining U.S. leadership.
5. Innovation and Entrepreneurship USCIS's restrictive approach may stifle innovation and entrepreneurship, areas where immigrants have historically played a disproportionate role.

Recommendations for reform

1. Revision of the interpretation of "National Interest" USCIS should consider a broader and more strategic interpretation of national interest, aligned with existing government evidence and policies on the importance of STEM professionals.
2. Adoption of a Long-Term Perspective The evaluation process should take into account the potential for long-term, transformative impact rather than focusing solely on immediate, measurable outcomes.
3. Recognition of Cumulative Impact USCIS should acknowledge the collective impact of STEM professionals across various fields and projects, rather than expecting individual, large-scale impacts.
4. Alignment with Global Competitiveness Strategies The NIW process should be aligned with broader national strategies for maintaining global competitiveness in science and technology.
5. Enhanced Collaboration with Other Agencies USCIS should work more closely with agencies like the National Science Foundation and the Department of Energy to better understand the evolving needs of the U.S. in STEM fields.
6. Regular Policy Review Establish a process for regular review of STEM-related immigration policies to ensure they remain aligned with evolving economic and national security needs.

Conclusion

The revision of USCIS's analytical system is not just a matter of immigration policy, but a strategic necessity to ensure that the United States maintains its competitive edge in the era of the global knowledge economy. By adopting a more holistic and forward-looking approach in evaluating EB2 NIW petitions for STEM professionals, the U.S. can not only fill critical skill gaps but also cultivate a more robust and diverse innovation ecosystem that will drive economic growth and national security in the decades to come.

Ultimately, the United States' ability to maintain its position of global leadership in science and technology will depend not only on its investments in research and development but also on its ability to attract and retain the world's best talent. A more welcoming and strategic immigration policy for STEM professionals is not just an option, but an imperative necessity for the future of the nation.

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1 National Science Board. (2020). The State of U.S. Science and Engineering 2020. National Science Foundation. https://ncses.nsf.gov/pubs/nsb20201/

2 U.S. Bureau of Labor Statistics. (2021). Employment in STEM Occupations. https://www.bls.gov/emp/tables/stem-employment.htm

3 National Science Foundation. (2020). Science and Engineering Indicators 2020. https://ncses.nsf.gov/pubs/nsb20201/

4 Department of Homeland Security. (2022). STEM Designated Degree Program List. https://www.ice.gov/sites/default/files/documents/stem-list.pdf

5 U.S. Citizenship and Immigration Services. (2016). Matter of Dhanasar. https://www.justice.gov/eoir/page/file/920996/download

6 National Academies of Sciences, Engineering, and Medicine. (2017). Building America's Skilled Technical Workforce. The National Academies Press. https://www.nap.edu/catalog/23472/building-americas-skilled-technical-workforce

7 Executive Office of the President. (2018). Strategy for American Leadership in Advanced Manufacturing. https://trumpwhitehouse.archives.gov/wp-content/uploads/2018/10/Advanced-Manufacturing-Strategic-Plan-2018.pdf

8 U.S. Department of Labor. (2022). STEM Occupations: Past, Present, And Future. https://www.bls.gov/spotlight/2017/science-technology-engineering-and-mathematics-stem-occupations-past-present-and-future/home.htm

9 National Foundation for American Policy. (2018). Immigrants and Billion Dollar Startups. https://nfap.com/wp-content/uploads/2019/01/2018-BILLION-DOLLAR-STARTUPS.NFAP-Policy-Brief.2018.pdf

10 Korn Ferry. (2018). Future of Work: The Global Talent Crunch. https://www.kornferry.com/insights/this-week-in-leadership/talent-crunch-future-of-work

11 McKinsey & Company. (2018). Delivering through Diversity. https://www.mckinsey.com/business-functions/organization/our-insights/delivering-through-diversity

12 UNESCO. (2021). Global Investments in R&D. http://uis.unesco.org/apps/visualisations/research-and-development-spending/

13 U.S. Department of Defense. (2018). Assessing and Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the United States. https://media.defense.gov/2018/Oct/05/2002048904/-1/-1/1/ASSESSING-AND-STRENGTHENING-THE-MANUFACTURING-AND%20DEFENSE-INDUSTRIAL-BASE-AND-SUPPLY-CHAIN-RESILIENCY.PDF

14 INSEAD. (2020). The Global Talent Competitiveness Index 2020. https://www.insead.edu/sites/default/files/assets/dept/globalindices/docs/GTCI-2020-report.pdf

15 The White House. (2021). Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-restoring-faith-in-our-legal-immigration-systems-and-strengthening-integration-and-inclusion-efforts-for-new-americans/

Domingos Rodrigues Pandelo Junior
Graduado e mestre pela FGV/SP. Doutor pela UNIFESP. Especialista em direito empresarial (IBMEC), direito público (IBMEC) e Holding Familiar (Verbo Jurídico). Também possui graduação em educação física (FEFIS) e especialização em ciências do esporte (UNIFESP). Foi professor dos programas de MBA do IBMEC SP, de graduação e MBA do INSPER e de programas de MBA da FGV Management. Experiência profissional no mercado financeiro, especialmente em valuation, fusões e aquisições, governança corporativa, planejamento patrimonial e family office. Na área esportiva atuou como Coordenador Técnico da Confederação Brasileira de Atletismo e Membro do Conselho Fiscal da Confederação Brasileira de Triatlo (em exercício).