Ask Sophie: Is it easier yet for AI founders to get green cards?

Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

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Dear Sophie,

I’m interested in the Biden administration’s efforts to retain AI talent in the United States. How is the administration making it easier for AI companies to sponsor employees for permanent residence? Will the number of green cards earmarked for individuals in the AI field increase?

— All About AI

Dear All,

Thanks for your timely questions! We’ve seen various improvements over the last two years for founders seeking immigration benefits such as the O-1A, EB-2 NIW, and even EB-1A. Recently, President Biden issued an executive order on AI, published in the Federal Register on November 1, 2023.  It included several immigration-related mandates aimed at attracting and retaining international AI talent.

One of those mandates called for the Secretary of Labor to publish an RFI (Request for Information) by mid-December to solicit input from the public on expanding the Department of Labor’s Schedule A shortage occupation list. The executive order sought to identify “AI and other STEM-related occupations, as well as additional occupations across the economy, for which there is an insufficient number of ready, willing, able, and qualified United States workers.”

In summary, the RFI seeks to determine:

• What types of data should be used to forecast potential labor shortages?
• What methods measure the presence and severity of labor shortages?
• What is a reliable, objective, and transparent method to identify STEM occupations with a labor shortage?
• Should the methodology apply to verticals beyond STEM?
• How could you identify non-STEM occupations?

Employers who employ a new or existing employee in an occupation listed in Schedule A can bypass the PERM labor certification process required for an EB-2 advanced degree or exceptional ability green cards and EB-3 green cards for professionals.

Ahead of the RFI, the Institute for Progress (IFP), a non-partisan think tank that focuses on innovation policy, created a data-driven method to identify the occupations that should be on Schedule A. I talk about this method, called the Help Wanted Index, in more detail below.

Now, let’s dive into your questions, taking your second one first.

Will more green cards be available?

Unfortunately, no green cards will be earmarked specifically for individuals working in AI and no additional green cards will be available for founders or other talent working in the AI field. Only Congress has the authority to raise the annual caps on green cards. Given the discord and dysfunction in Congress, increasing the number of employment-based green cards that are available each year — or any immigration reform, for that matter — isn’t too likely. The Biden administration is using executive action and administrative avenues to improve the immigration process to meet the country’s security goals and maintain its global leadership in artificial intelligence.

Each fiscal year, 140,000 employment-based green cards plus any unused green cards from the family-based categories from the previous fiscal year are available. About 165,000 employment-based green cards are available in FY 2024, the current fiscal year, which ends on September 30, 2024. In addition to the annual cap, each employment-based green card category also has a per-country cap of 7%. This cap is based on an individual’s country of birth (not country of citizenship).

Individuals born in India and China are at a disadvantage since the demand for green cards from candidates born in these two countries far exceeds the number of green cards available to them.

Easier for AI talent to get green cards?

One of the first concrete steps the Biden administration is taking to make immigration easier for top AI talent is prompting the Department of Labor (DOL) to update the Schedule A list to designate AI and other STEM occupations as not having enough willing and qualified U.S. workers to fill those positions. Take a look at this Ask Sophie column in which I discuss all the immigration-related provisions in Biden’s AI executive order.

Established in 1965, Schedule A is a list of occupations that are exempt from going through the costly and time-consuming labor market test and PERM labor certification process required for employer-sponsored EB-2 and EB-3 green cards. The PERM process aims to protect the opportunities, wages, and working conditions of U.S. workers in a similar field by assessing whether hiring a non-U.S. citizen would prevent equally qualified U.S. workers from being hired.

When employers sponsor an employee for an EB-2 or EB-3 green card, they must obtain PERM certification from the DOL before they can submit an I-140 green card petition to U.S. Citizenship and Immigration Services (USCIS). Currently, the DOL is taking about a year to decide on PERM labor certification, but there are many precursor steps in the process. According to the USCIS Check Case Processing Times page, the USCIS takes anywhere from four to nearly eight months to process I-140 green card petitions for EB-2s and EB-3s, depending on the USCIS service center.

Green card cases involving occupations listed on Schedule A as being in short supply do not have to undergo a labor market test and can skip the PERM application process, significantly reducing the timeline for getting an EB-2 or EB-3 green card. Schedule A helps allocate the fixed number of green cards in job markets where immigrants are most needed and least likely to adversely impact U.S. workers.

Using a data-driven method

Currently, Schedule A lists only professional nurses and physical therapists, as well as scientists and artists of exceptional ability — and it was last updated in 1991! Sheepherders also get a break. Changes to Schedule A have largely been made based on policy priorities and testimony or comments from lobbyists and employers. Additionally relevant for founders is that self-petitions are not allowed.

In its RFI, the DOL states it is seeking “input, including data, statistical metrics or models, studies, and other relevant information, on how the Department may establish a reliable, objective, and transparent methodology for revising Schedule A to include STEM and other non-STEM occupations that are experiencing labor shortages.”

The Institute for Progress (IFP) has devised a data-based method for determining occupations that could be placed on Schedule A because the number of U.S. workers who could fill those positions falls far short. IFP developed what it calls the Help Wanted Index to modernize Schedule A. The index measures the labor market conditions for about 400 occupations in the U.S. by assessing 10 key economic indicators for each occupation, including metrics such as:

• The unemployment rate.
• An increase in the median pay over one year and over three years since pay increases indicates shortages and suggests companies are looking for workers and are willing to pay more to attract them.
• An increase in jobs since rapid job growth indicates rising demand for workers.
• The income premium, meaning how much more workers are paid compared to workers of similar backgrounds.

Using its methodology, the IFP identified 28 occupations that should be added to the Schedule A list, which represents about 6% of PERM applications. The “most notable additions” would potentially include:

• Atmospheric and space scientists.
• Astronomers and physicists.
• Natural science managers.
• Electrical and electronics engineers.
• Environmental engineers.
• Architectural and engineering managers.
• Surgeons.
• Registered nurses.
• Nurse practitioners and nurse midwives.
• Diagnostic technologists and technicians.
• Medical and health services managers.
• Psychologists.
• Audiologists.
• Counselors.

What can you do?

Once published in the Federal Register, the DOL’s RFI will likely have a 60-day comment period, which means comments will be accepted until mid-February. I urge you and others in the STEM fields to let the DOL know how crucial it is to add STEM-related occupations to Schedule A and to use a data-driven method to identify those occupations.

Your comments must be in English, but business owners and non-citizens are eligible to comment. And you can even file your comment anonymously! After the comment period ends, the DOL will review the comments and will hopefully issue an updated Schedule A.

Make your voice heard! You’ve got this!

— Sophie

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