Rachel Beardsley & Michelle Yang
June 28, 2024
Newsletter ArticleBy Rachel Beardsley & Michelle Yang, Fragomen
The US agricultural sector puts food on the tables of American families and more broadly is considered the breadbasket of the world. To fulfill this critical role, agricultural employers require key workers, both seasonally and year-round, to produce safe, sustainable food that Americans depend on.
Stability in the agricultural sector is critical as the food we eat is a result of the labor performed by skilled workers on farms across the nation, from dairy farms in Wisconsin to strawberry fields in Florida.
However, in many areas of the US, agricultural employers are not able to source enough domestic workers to fill open positions, especially in rural areas where population decline spotlights severe shortages of agricultural workers. As such, employers turn to international talent to fill these roles.
Given the shortage of local talent in science, technology, engineering, and mathematics (STEM) fields, the Biden Administration announced initiatives to attract and retain STEM talent. These administrative changes have directly benefited the agricultural sector given the high concentration of STEM occupations in this area. This has led to the creation of new jobs, new industries, and new opportunities, particularly for those in the agricultural and related sciences industries. The ability of agricultural employers to sponsor and meet their workforce needs is crucial, and as a result, immigration is fundamental to the farming economy.
Below is a summary of the impact of the Biden administration’s STEM initiatives related to key temporary visa and green card categories.
The F-1 visa allows an international student to study at a US-accredited college or other academic institution. While F-1 students are usually not authorized to work off-campus during the school year, students may be authorized to accept employment directly related to the major area of study after the completion of their academic studies by applying for Optional Practical Training (OPT) and STEM OPT, if eligible. OPT allows an F-1 student to work for up to 12 months and requires the F-1 student to apply for an employment authorization card (EAD). Further, because the US government has a vested interest in ensuring there are enough people in the American workforce with degrees in STEM fields, an F-1 student with a STEM degree is eligible for an additional 24 months of OPT work authorization with an employer enrolled in the U.S. government’s E-Verify program, which allows employers to verify a new hire’s work authorization through an online check against government databases.
Throughout the past two years, the Biden administration expanded F-1 STEM OPT eligibility by including 30 additional degree programs that now qualify as STEM fields for OPT eligibility purposes, such as climate science, bioenergy, and environmental geosciences. With the expansion of STEM degree programs, more F-1 students will be eligible for up to three years of combined OPT/STEM OPT work authorization. Further, it provides more F-1 students with a longer runway to switch to another work visa category, such as an H-1B professional work visa. This additional OPT time is particularly helpful for improving the chances of securing an H-1B visa, as that category is subject to annual numerical limits and a random lottery selection process, and it can take several annual lottery entries before an individual manages to get selected in the lottery.
The J-1 visa is another visa category utilized by international students for study at US universities. To promote study and employment in STEM fields, in 2022, the Biden administration announced a temporary initiative to allow J-1 Bachelor’s and Master’s degree students in STEM fields to be eligible for up to 36 months of work authorized “academic training” (which is the J-1 equivalent of OPT for F-1 visa holders), in lieu of the normal maximum period of 18 months.
The State Department is also planning an “Early Career STEM Research Initiative” to facilitate J-1 visa holders’ entry to the US to engage in STEM research via research, training, or exchange programs with host companies and organizations.
If an international worker – such as an agricultural researcher or scientist – has garnered sustained national or international acclaim for their work, the O-1 visa may be an option, as this is available to individuals who possess extraordinary abilities in a specific field of endeavor and are among the small percentage at the top of their field. To qualify for an O-1 visa in the sciences or business, the individual must demonstrate extraordinary ability through either receipt of a major, internationally recognized award, or evidence in at least three of the following categories: national/international awards, publications by the applicant, publications about the applicant’s work, original contributions to the field, employment in critical roles with distinguished organizations, judging the work of others in the field, commanding a high salary, and/or membership in associations that require high achievement of their members.
New USCIS guidance addresses O-1 visa eligibility for individuals with a STEM graduate degree and emphasizes how this temporary work visa option is another avenue available to international talent working in STEM fields. With the current labor shortages faced, especially in service businesses, hiring O-1 visa workers may be a potential solution for agricultural employers with a need for high-level talent.
In addition, the Biden Administration introduced new guidance related to the special employment-based green card category known as the “National Interest Waiver” (NIW) process that is intended to be more favorable to STEM degree holders. The NIW category is a viable option for certain highly qualified individuals, and it offers a major advantage over the normal employment-based green card process because it allows the international worker to entirely bypass the lengthy and often onerous labor certification (PERM) process, which requires the prospective U.S. employer to advertise the position and establish that there are no qualified U.S. workers available to fill the position. An employer may file the NIW petition or an applicant may self-petition. To qualify for an NIW:
Undoubtedly, the agricultural sector is of national importance, and advancements and innovations in food production are vital to the country’s continued ability to feed American families. As such, the NIW green card path may be a strong option for applicants in agricultural fields who meet the eligibility criteria.
The Biden administration’s prioritization of STEM degree holders has had an impact on other types of green card filings, including the Employment First Preference (EB-1) Extraordinary Ability and Outstanding Professors and Researchers categories. These green card options may be available for sophisticated agricultural positions related to research and/or high-level business operations.
The EB-1 Extraordinary ability category is essentially the green card equivalent of the O-1 extraordinary ability temporary worker category discussed above, and the eligibility criteria largely mirror those of the O-1 category, as set forth above. In addition to confirming that the case meets at least three of these criteria, the Immigration Service also reviews the petition to determine whether, based on the totality of the evidence, the applicant meets the overall standard of extraordinary ability, which requires a showing of sustained national or international acclaim and that the applicant is among the few at the top of their field.
Similarly, for a petition for an outstanding professor or researcher, the prospective U.S. employer must establish that the applicant is recognized internationally as outstanding in their academic field and must present evidence showing the applicant meets at least two of the following six criteria: national/international awards, membership in associations that require high achievement of their members, publications by the applicant, publications about the applicant’s work, original contributions to the field, and/or judging the work of others. Further, the applicant must have three years of experience teaching or performing research, and the offered position must be as a professor with a university or with a private employer that employs at least three full-time researchers.
In conclusion, the Biden administration’s initiatives aimed at attracting and retaining STEM talent is an important development for the agricultural sector, which relies heavily on skilled workers to sustain food production for American families and global markets.
By promoting temporary work visas in STEM fields and streamlined green card options like the EB-2 National Interest Waiver and EB-1 categories for extraordinary ability, the administration is seeking to facilitate avenues for international workers to contribute to agricultural innovation and productivity.
These efforts not only seek to address current labor shortages but also to foster new opportunities for growth and technological advancement within the agricultural industry. As the administration continues to support these initiatives, it underscores the importance of immigration in maintaining the strength and resilience of America’s farming economy, ensuring its ability to meet domestic and global food demands now and in the future.
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