Immigration Agency Response to AI Order Lags Despite Head Start

The Department of Homeland Security and other agencies overseeing immigration have been slow to meet the goals of President Joe Biden’s executive order on artificial intelligence even though they already had undertaken steps to boost foreign talent pipelines well before the order’s release.

US Citizenship and Immigration Services updated its guidance two years ago to improve the availability of a temporary visa for workers with extraordinary ability as well as green cards for those with skills in the national interest.

The State Department earlier this year launched a long-awaited pilot for H-1B specialty occupation workers—who are heavily represented in the tech industry—to renew their visas in the US, ensuring key employees could more easily travel outside the US and back.

Six months after the order’s release, though, new regulatory measures have been slow to emerge from those agencies even as major tech firms helping develop AI highlight immigration-related challenges to bringing on new foreign talent. And immigration attorneys representing those companies as well as smaller employers say they’re vexed by USCIS adjudicators’ inconsistent handling of visa petitions.

But there may be little room for the agencies to pursue significant new measures addressing AI and international talent without broader changes to the nation’s immigration laws.

“We might be at the limit for what we can do within existing law, at least within these categories” said David Bier, director of immigration studies at the Cato Institute, a libertarian think tank.

Alternate Pathways

In early 2022, USCIS revised its policy guidance to clarify how professionals in science, technology, engineering, and math fields could show eligibility for temporary and permanent visas other than the H-1B visa.

H-1Bs are capped at 85,000 new slots each year despite rising demand that’s prompted a lottery for the visas. Employers submitted registrations for more than 420,000 unique beneficiaries in the annual H-1B lottery this year—more than twice the number from just three years before.

Reviewing policy changes needed to modernize those alternate immigration options was among the measures outlined in the White House order.

The updated guidance led in 2022 to a nearly 30% jump in O-1 visa petitions for individuals with extraordinary ability and a 50% increase in green card petitions for individuals who perform work that’s considered to be in the national interest—a designation that doesn’t require an employer sponsor or domestic labor market test.

There is no limit on which occupations qualify for national interest waivers, but applicants must meet several prongs to establish eligibility, including an endeavor that has substantial merit and is of national importance and a demonstration that they are well-positioned to advance that work.

“It’s like water trying to find the low spot,” Bob Webber, an immigration attorney at Webber Arredondo Oja LLC, said of the shift from H-1Bs to the other types of visas.

The O-1 extraordinary ability visa is “really the way to get out of the H-1B lottery and get yourself into a status that you can renew indefinitely,” Bier said. The national interest waiver green card category is subject to an annual cap, but it offers a faster route to permanent residency for those who qualify, he said.

But immigration attorneys say the USCIS officers who adjudicate visa petitions don’t have the subject matter expertise to determine whether someone has legitimate qualifications in AI or other emerging fields, leading to inconsistent visa adjudications.

One client will be approved for a green card with no additional information required, while another with a similar profile will be denied, said Jason Susser, an attorney at Siskind Susser PC.

“The issue is that it’s still incredibly subjective,” he said. “You say our policy is that we’re going to try and approve more people working in AI because nationally it’s important for us to be competitive in this field. But then the officers are still going to deny and not really provide any explanation.”

Although more O-1 and National Interest Waiver visas have been issued, petitioners recently also have been met with additional requests for evidence from adjudicators, attorneys say.

The requests are made when an immigration officer requires more information before ruling on a petition. For immigration attorneys filing on behalf of high-skilled workers, they indicate additional scrutiny of whether the workers’ skills meet eligibility standards for visas like the O-1.

“We have seen a significant increase in cases being filed and generally many cases are being reviewed favorably,” Kelli Duehning, a partner at immigration firm BAL, said in an email. “However, there are still some cases either being denied or RFE’d. Thus, it is difficult to say if ‘success’ it being reached or not.”

More Clarity Sought

USCIS didn’t respond to a request to elaborate on recent steps it had taken to clarify those visa pathways in response to the White House order.

The agency said in an April fact sheet that it has streamlined processing times for petitions to work and study in the US. USCIS also said it clarified its policies for O-1 visas and the EB-1 and EB-2 green card categories, as well as startup founders.

DHS could issue further guidance that says approval for an O-1 visa creates a presumption that an applicant meets eligibility standards for a national interest waiver green card, Webber said. Other attorneys hope to see USCIS respond to the executive order with clear guidance in its policy manual on how AI skills meet the requirements for both visa types.

That guidance would make those options “more mainstream and widespread among practitioners,” said Sameer Khedekar, CEO of Visa Virtuosos LLC. “It could clarify exactly what types of evidence the government would like to see and, hopefully, streamline the overall process,” he said.

Immigration officers rely on the agency’s policy manual to guide their visa decisions, not high-level documents like a White House executive order, said Noah Klug of Klug Law Firm PLLC. “The only way you get things done is at the policy level,” he said.

Addressing Barriers

Other agencies have undertaken some of the measures outlined in the executive order.

In addition to the H-1B domestic renewal pilot, the State Department in March sent a rule to the White House Office of Management and Budget to update its list of occupations that require researchers and scholars on J-1 exchange visas to return to their home countries for two years after completing their program in the US.

Overhauling the J-1 “skills list” is an example of where the executive branch has authority to make a real difference in retaining foreign talent by exempting more workers from the home residency requirement, said Jeremy Neufeld, a senior immigration fellow at the Institute for Progress, an industrial, technological, and scientific-focused think tank.

“One way to keep those workers in the US is to reduce the number of people subject to that requirement in the first place,” he said.

The US Labor Department, which helps ensure that the employment of foreign workers doesn’t displace US workers, meanwhile is seeking public input on a plan to overhaul a list of occupations with demonstrated labor shortages. The list allows visa petitioners in those occupations to bypass a DOL labor certification process that can take as long as 800 days.

But observers suggest that actually updating that Schedule A list before Biden’s term is up could be difficult.

The barriers to key talent facing companies developing AI technology is comparable to those encountered by the semiconductor industry after lawmakers invested in new chip production in the US, Neufeld said. Ultimately, immigration agencies have limited ability to open serious new talent pipelines without Congress lifting statutory caps on employment-based visas and green cards, he said.

“We need Congress to address the talent bottlenecks holding us back,” Neufeld said.