Month: October 2023

IMMIGRATION NEWS THAT YOU CAN USE – EAD’S INCREASED TO FIVE YEARS FOR MANY CATEGORIES – QUESTION; KEEPING STRAIGHT UKRAINIAN AND VENEZUELAN TPS TIMETABLES; USCIS ADJUDICATING DEPENDENT NONIMMIGRANT APPLICATIONS ALMOST SIMULTANEOUSLY WITH PRINCIPAL PETITIONS.

As published in the Immigration Daily on October 24, 2023

  1. EAD’s Increased to Five Years for Many Categories – Question.

USCIS on 9/27/23 announced that it is increasing the length of time for EAD’s in certain categories to five years for initial and renewal EAD’s. These include applicants for asylum or withholding, adjustment under section 245, and suspension or cancellation of removal cases. Also those admitted as refugees, paroled as refugees, and granted asylum or withholding. It clarified that certain Afghan and Ukrainian parolees are employment authorized incident to parole.

Question: As is known, an EAD is only an ancillary application dependent upon the fate of the principal benefit being requested. How does an employer in good faith who does not use E-Verify know that the job applicant is no longer authorized to work when the principal immigration application has been denied since the job applicant will still be presenting an immigration document that is still facially valid for employment as it is one of the documents on the I-9 “A” list that establishes both identity and employment authorization? While recognizing that USCIS has better things to do with its time than constantly extending employment authorization, perhaps a lesser amount of time, three instead of five years, would be more appropriate.

  1. Keeping Straight Ukrainian and Venezuelan TPS Timetables

With extensions and re-designations to the TPS programs of Ukrainians and Venezuelans, we thought to offer a short timetable of the benefits for each nationality to make them clearer as to deadlines to apply, date to be in the US for eligibility, and time limits of stay:

Ukrainians:

  • First registration was from 4/19/22-10/20/23.
  • Extension goes from 10/20/23-4/19/25.
  • Re-registration for extension is from 8/21/23-10/20/23.
  • Redesignation for those continuously resident in US since 8/16/23 and physically resident in US on 10/20/23 and thereafter.
  • Redesignation also goes from 10/20/23-4/19/25.
  • Registration period for redesignated goes from 8/21/23-4/19/25.
  • Expected eligible Ukrainians for redesignation are 166,700 in addition to the 26,000 eligible for extension under the initial program.

Venezuelans:

  • First registration and extensions were until 9/9/22 and 3/10/24.
  • New TPS extension announced by DHS on 9/20/23 until 9/10/25.
  • Reregistration for extension goes from 1/10/24-3/10/24.
  • Redesignation for those continuously residing in the US since 7/31/23 and continuously physically present in the US since 10/3/23.
  • Redesignation time goes from 10/8/23-4/2/25.
  • Registration date for initial registration goes from 10/3/23-4/2/25.
  • Expected eligible Venezuelans for redesignation or 472,000 in addition to the 243,000 eligible for extension under the initial program.

More complete information can be found for Ukrainians in the Federal Register / Vol. 88, No. 160 / Monday, August 21, 2023, and for Venezuelans in the Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023.

  1. USCIS Adjudicating Dependent Nonimmigrant Applications Almost Simultaneously with Principal Petitions.

In case you missed it, USCIS posted a notice on its I-129 page that for H-4 and L-2 dependents who are applying in the same package with their principal’s I-129 petition, it will adjudicate the dependent I-539 application(s) directly after approving the I-129 petition. This includes H-4 and L-2 work authorization requests. The news is welcome to all as USCIS in the past adjudicated the dependent applications separately and could take weeks or months to make a decision, leaving a family in suspense even though knowing that the dependent application(s) would in all likelihood be approved. Hardship could arise in the situation where the dependent spouse was waiting for approval of employment authorization to take up or continue employment. The new policy may encourage the use of premium processing for the entire case in such situations. We remind dependents that no biometrics fee is required for the I-539 and that a mistaken combination payment for I-539 and biometrics will result in rejection of the application and upon resubmission not considered to be part of the above policy unless the I-129 was simultaneously rejected and the entire package resubmitted at the same time.

Arthur Lee, Esq. Q&As published on the World Journal Weekly on October 29, 2023 : 1. Work normally with curtain working visa may be able to go to school part-time 2. I-485 has been submitted and can only allow to leave the US under advance parole, or H, L status 3. You have an unrevoked approved I-140, may be eligible for a 3 year H-1B extension/transfer 4. It has been more than 180 days since I-485 was submitted then you can change your job

 

1. Work normally with curtain working visa may be able to go to school part-time

A reader asks:
My I-140 was recently approved, and I have worked for so many years, and now I want to work part-time and study part-time. But my GRE and TOEFL have expired and want to take the exams again. Can I not be considered as an international student at this time?

Arthur Lee Esq. answers:
The answer here is dependent upon your current underlying nonimmigrant status. If you have F-1 status or are planning to change your status to F-1 to go back to school and successfully obtain an I-20, you can certainly study part-time (although that would take away your ability to work in most circumstances, save for CPT, eventual OPT, and on-campus part-time work). If you are under F-1 and have valid OPT or STEM OPT, you can do part-time schooling so long as you are able to fulfill your OPT/STEM OPT work hourly obligations. If you are under a working visa (i.e. an H-1B, L-1, O-1, etc.), you may engage in part-time schooling so long as you are able to fulfill your hourly working obligation. For instance, if you are a full-time (40 hour per week) worker under any of these statuses, you can attend school at night and work 8 hours per day. Of course, you may need to demonstrate to USCIS that you are working 40 hours per week through proof of pay, W-2s, and attestations from your employer. If you are attending school, but not working the number of hours you are supposed to be working under your current working visa, then you risk violating your immigration status.

2. I-485 has been submitted and can only allow to leave the US under advance parole, or H, L status

A reader asks:
I already have an approved I-140 (EB2) before, and now I am applying for a new I-140 (EB3) with the same PERM. My question is while this I-140 is pending, can I leave the country and come back to the US?

Arthur Lee Esq. answers:
The answer to the question depends in part upon whether you have already filed an I-485 adjustment of status application. If the adjustment has been filed and remains pending, you are only allowed to leave the US under advance parole or if you have H (specialized occupation) or L (intracompany transferee) status. If you are not at the point of filing for adjustment of status, the I-140 petition does not confer travel privileges. In that situation, your ability to leave the US and return would be dependent upon factors such as whether you have a valid visa for entry; whether you need to see a US consular officer for a visa to return and in that case, whether the visa that you are asking for has dual intent purposes. (You are obligated to disclose in a nonimmigrant visa application whether you have ever applied for an immigrant visa petition). In the event that you already have a pending I-485 based upon the EB-2 filing and are wondering whether you can travel while applying for an EB-3 visa status with the same PERM labor certification, that is able to be done through leaving the US under H or L status or advance parole based upon the pending I-485 application.

3. You have an unrevoked approved I-140, may be eligible for a 3 year H-1B extension/transfer

A reader asks:
I had approved I-140 in my previous company, and my H-1B has been used close to a total of 6 years and not much time left. If I am laid off and return to China at this time, wait a few years for the priority date to become current and then come back and use the remaining H-1B again, will the USCIS give me 3 years of H-1B or just the remaining of 6 years? I worry that the company will not give me an offer on the grounds that there is too little time left for the H-1B and the PD is current.

Arthur Lee Esq. answers:
If you return to China and then come back to the United States more than 1 year later, you will be able to restart another 6 years of H-1B assuming that you “win” the H-1B cap lottery. However, since you would be subject to the lottery unless you apply for a cap exempt organization this may not an ideal solution.

If you have an approved I-140, under certain conditions, you may be eligible for extensions beyond your 6th year without leaving the United States (or coming back into the United States after a couple of years out). Assuming that your priority date is not current, but you have an approved (non-revoked) I-140, you may be eligible for a 3 year H-1B extension/transfer. If you have an unrevoked approved I-140, and your priority date has been current for less than 1 year, you may be eligible for a 1 year H-1B extension.

4. It has been more than 180 days since I-485 was submitted then you can change your job

A reader asks:
If I go to school while my I-140 is still pending, and wait for the priority date to become current, then find a related job, can I apply for I-485? I feel the biggest obstacle is going to school/study will lose my H-1B and my right to work.

Arthur Lee Esq. answers:
Regarding your ability to apply for I-485 after finding a related job, you unfortunately are not eligible for porting since you have not yet filed your I-485 and thus cannot yet switch positions. Job portability, or the ability to move to a new job in the same or a similar occupational classification as the job offer for which an immigrant petition was filed is only available when an applicant’s properly filed I-485 has been pending for 180 days or more at the time that USCIS receives the request to port. In your case, it does not appear that you have filed an I-485. If your priority date is current at this time, you may file an adjustment of status application (with an intent to stay at your current job upon receipt of your green card), and then after 180 days have elapsed assuming your I-485 is still pending, then move to a same or similar position if you find one. But at this time, if you found a new job, you would have to file a new I-140 in addition to redoing the labor certification process if you are filing under EB-3 or EB-2 without Schedule A or NIW. You may be eligible to retain your current priority date so long as your I-140 petition is not revoked due to fraud, willful misrepresentation of a material fact, invalidation of labor certification, or material USCIS error. But aside from priority date retention, you would have to start your petition process over.

Regarding the schooling aspect of your question, you may go to school part-time under valid H-1B status. You can go to school so long as you are fulfilling your hourly obligations under H-1B status. For example, if you are a full-time worker (40 hours per week), you will need to work those 40 hours. If you are able to do schooling outside of those hours whilst still completing 40 hours of work per week, then there is nothing legally stopping you from going to school and studying. If you have an H-1B job that is part-time (say 20 hours per week), then you may go to school as long as you complete those 20 hours weekly. However, if you do not meet your work hourly obligations, you risk violating your H-1B status, which can complicate your I-485 application.

ALAN LEE, ESQ. SUPER LAWYER FOR 2023 IN NEW YORK METRO AREA

The 2023 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 3 lawyers of Chinese descent in the 82 attorneys chosen in the area of immigration law.

This is the 12th time that Alan Lee has been selected, having previously been honored in 2011, 2013-2022.  He exclusively practices U. S. Immigration and Nationality Law with his son and partner, Arthur Lee, ESQ, in the law firm, Alan Lee and Arthur Lee, Attorneys at Law.

Please click here for the “Super Lawyers List for Immigration 2023“

Article: ARTIFICIAL INTELLIGENCE WORKER IMMIGRATION – PART 2 by Arthur Lee, Esq.

As published in the Immigration Daily on October 16, 2023

This is the second of a two-part article on the artificial intelligence immigration problem with the PERM system; the NIW option; and a possible solution.

Part 2 – Clarity and Expediency In Employment-Based Immigration for AI Worker

In Part 1 of this article, I laid out the problems pertaining to the United States attracting talented foreign artificial intelligence (AI) workers with regards to procedures governing employment-based permanent residence. In this second installment, a possible solution to better attract AI employees for permanent residence is discussed.

It would benefit the US’ ability to attract AI talent if there is categorical eligibility to forgo the test of the labor market for qualified foreign workers in AI jobs applying for permanent residence. Canadian immigration policy fast-tracks adjudications and visa issuance for foreign workers in six fields of high demand including STEM (science technology engineering and mathematics) and healthcare.[1] Thereafter, the top ranking applicants in those fields are invited to apply for permanent residence.[2] Since Canada employs a “points” system, and assigns points for factors such as years of experience, education, and age, it can determine who the top ranking applicants are. While the United States does not have such a system, it can still find pathways to fast-track the immigration of AI workers. 

US immigration policy currently has some mechanisms in place to fast-track the immigration of highly-demanded workers. One is Schedule A. If an occupation falls within Schedule A, the Department of Labor “pre-certifies” the foreign worker’s position, thereby allowing the employing petitioner to forgo the test of the US labor market. This shortens the PERM green card process by approximately 11-12 months, and eliminates some of the uncertainty in the process. Schedule A pre-certification is available for physical therapists, professional nurses, and “immigrants of exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts.” A highly skilled AI worker may fall into the latter category. But the problem is that in practice, it takes considerable preparation, documentation, and labor to demonstrate exceptional ability in AI-related sciences, and that the adjudication guideline for the demonstration of exceptional ability is not as straightforward as it is for physical therapists and nurses. Additionally, the requirement of exceptional ability weeds out AI specialists who may not be prominent in their industries, but are still highly useful and potentially vital employees to US AI companies.

To improve its ability to attract the best AI talent worldwide, the US government should categorically define its most demanded AI workers and apply a “Schedule A” designation to them. The INA in 1965 gave DOL’s Secretary authority to revise the list “any time upon his own initiative or upon a written petition of any person requesting the inclusion or omission of any occupation…”[3] In practice, however, DOL has not updated Schedule A since 2005, leaving the same occupations on the list for that time: physical therapists, nurses, and immigrants with exceptional ability in the arts and sciences.[4] This is an inaccurate representation of the current needs of the US labor force. If it were up to date, AI tech employees would be on the list in some form. Doing this would greatly reduce uncertainty as to which foreign workers are qualified for a fast-track to permanent residence, and increase adjudicative efficiency. Senator Martin Heinrich’s proposal on modernizing Schedule A is a reasonable solution that should be considered: “The DOL can take short term action by expanding Schedule A using a data-driven approach that uses data on vacancies, unemployment rates, wage growth, and hours worked to assess the sectors most in need of support… In the long term, the DOL could adopt a transparent, modernized statistical model to regularly update the Schedule A list every 5 years.” [5]Modernizing the Schedule A list to incentivize foreign workers to move to the United States to work in high-demand occupations would bolster U.S. competitiveness in key fields such as AI, semi-conductor production, and biotechnology without harming wages and working conditions of U.S. workers.[6] 

To make this policy even more effective in attracting foreign AI workers, qualified Schedule A workers should be exempt from visa backlog restrictions. The reality is that it would be difficult to make a dent in the green card backlogs—especially for those in oversubscribed countries like India and China—even with Schedule A expansion since such employees would still be subject to EB-2 backlogs.[7] But to exempt Schedule A from employment-based visa limits, Congress would have to propose and pass a legislation.[8] This is a tall ask since Congress rarely passes legislative reforms to the U.S. immigration system. While unlikely to pass, this exemption from EB-backlogs for Schedule A is worth consideration. Schedule A was enacted in 1965 to offer permanent resident visas to “qualified immigrants who are capable of performing specific skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States.”[9] A skills shortage is backed by compelling evidence for artificial intelligence workers. Talent shortages in AI are likely to have negative economic and security consequences for the country. Therefore, to help the US remain a leader in emerging technologies in the world and the world economy, and maintain its high level of security, the US should consider not only adding AI engineering related positions to Schedule A, but also allowing Schedule A employees to be exempt from EB-visa backlogs.

[1]CTV News, “Health-care workers, science and tech experts targeted in new Canadian fast-track immigration system.” Sissi De Flavis, June 28, 2023. https://www.ctvnews.ca/canada/health-care-workers-science-and-tech-experts-targeted-in-new-canadian-fast-track-immigration-system-1.6459698

[2]Id.

[3]American Action Forum, “Expediting Immigrant Labor Certification: What Are the Options?” Isabella Hindley. April 19, 2023. https://www.americanactionforum.org/insight/expediting-immigrant-labor-certification-what-are-the-options/

[4]Joint Economic Committee Democrats, “Modernizing the Schedule A Occupation List Can Help the United States Address Key Employment Shortages.” Senator Martin Heinrich (D-NM). June 30, 2023. https://www.jec.senate.gov/public/index.cfm/democrats/issue-briefs?ID=BDFE9EB0-1E17-4BA2-B3D0-C13A6CF31123

[5]Id.

[6]Id.

[7] Lindsay Milliken, A Brief History of Schedule A: The United States’ Forgotten Shortage Occupation List, University of Chicago L. Rev., September 2020.

[8]Id.

[9]Id.

Alan Lee, Esq. Q&As published on the World Journal Weekly on October 15, 2023 : 1. I have applied for the I-601 waiver of Communist Party membership and there should be no problem entering the country. 2. NIW processing time is usually about 12 months

1. I have applied for the I-601 waiver of Communist Party membership and there should be no problem entering the country

A reader asks:
I am a member of the Communist Party of China. I applied for EB-1 with my wife. I-140 and I-485 were submitted together. The 601 main application has already got the card. I have been working with the combo card for a while, and now I am going to return to China. But I heard that the combo card will enter the small black room when entering the country, so the party member status is even more sensitive. I don’t know if you will be made things difficult in the small black room?

Alan Lee Esq. answers,
You are correct that applicants for adjustment of status who leave the US and return on advance parole mostly go into secondary inspection upon return. I am not sure that your description of a small black room is accurate. In the inspection, a Customs and Border Protection (CBP) inspector will generally look to see whether the application upon which the advance parole is based is still pending. The officer may also look at your information in the system to ensure that you do not have other reasons for inadmissibility, mainly on the criminal side. If you have already made an I-601 application for waiver of Communist Party membership, the membership should not be an issue for CBP unless something in the system indicates a danger to national security. Assuming that everything else is all right, the inspector should stamp your passport and allow you to enter.

2. NIW processing time is usually about 12 months

A reader asks:
Although I know that 63 days is not too long for NIW’s case, I check my status on case green every day. I roughly calculated that it will take 300 days for the number segment SRC239007 to be fully reviewed. Is this estimate correct?

Alan Lee Esq. answers,
You can check the USCIS processing times for most of the cases in the category to get a rough idea as to how long the NIW (National Interest Waiver) petition will take. Your case number begins with SRC (Southern Regional Center), which means that it is most likely with The Texas Service Center of USCIS. Currently, Texas projects 12 months waiting time for most of the NIW cases. For readers’ information, the other listed service center handling NIW’s, Nebraska, has an approximate wait time of 11.5 months. Kindly note that NIW petitions can now be premium processed at the cost of $2500 and that USCIS will reach the petition within 45 days of receipt of the I-907 premium processing application.

Arthur Lee, Esq. Q&As published on the World Journal Weekly on October 15, 2023 : 1. Company’s hiring freeze may affect PERM application 2. To apply for a PERM green card, the employer must be willing to hire full-time employees 3. To track for case processing times

1. Company’s hiring freeze may affect PERM application

A reader asks:
The company is hiring freeze, but there is no layoffs. The departments that need to recruit are referred internally; it means there is no recruitment externally. If this is the case, can I still apply for a green card? Specifically which part will be affected? PWD, AD, or PERM?

Arthur Lee Esq. answers:
If there is a hiring freeze, the part of your application that may be affected is mainly the advertisement and recruitment stage. The PWD will not be affected since that is just a determination of your wage level and position by the Dept of Labor based upon the job description provided by your company. The ETA 9089 (ie PERM) is not affected as it asks a company to disclose whether it has had a layoff in the past 6 months in positions related to the one you will occupy upon obtaining a green card. However, the recruitment phase may be affected because the company will have to perform external recruitment for your position in its test of its labor market before you can be certified under PERM. This includes placing a job order with the state workforce agency, doing an internal posting disclosing that it will offer you a position at a specified wage, posting 2 Sunday newspaper ads in the area of intended employment, and 3 alternate forms of recruitment such as but not limited to website posting, 3rd party posting such as on Indeed or Monster, local newspaper ad, radio/TV ad, or college recruitment assuming that this is a professional position. If the company receives resumes from U.S. workers who seem like they may be qualified for the position, your company will need to contact/interview these candidates. If a candidate is able, willing, qualified and available to take the position, the company will have to offer your position to that qualified/able U.S. worker in its test of the labor market. Therefore, the recruitment phase may be affected and you must discuss the above possibility with your employer and verify that it is willing to do external recruitment on your green card position to test the U.S. labor market during this hiring freeze.

2. To apply for a PERM green card, the employer must be willing to hire full-time employees

A reader asks:
I am currently working as an engineer in a company with a work visa. What is certain now is that the company will no longer recruit full time engineers in the future, but will turn to outsourcing to find contractors. Excuse me, will this affect my PERM application and the advertisement before application?

Arthur Lee Esq. answers:
It depends on the circumstances of your case. First, your employer must understand that if your PERM case is successful, it must hire you as a permanent fulltime employee upon your getting your green card. If your employer is not willing to do that, then there is no basis for your PERM labor certification case. Second, during the recruitment process, your employer must test the labor market and interview all apparently qualified candidates for a fulltime engineering position. At this stage, there must be a willingness on the part of your employer to hire a fulltime engineer. Since your employer is testing the market for your proffered fulltime position, it must be willing to replace you with a qualified and willing U.S. worker who meets the qualifications as a fulltime employee if such a person applies and your employer has no other open position. As a side note, if there is a layoff in the engineering position in the six months prior to filing ETA 9089, your employer would need to notify and consider previously laid off workers in the engineering roles for your PERM position.

3. To track for case processing times

A reader asks:
It has been 3 months since I did fingerprints for my I-485. My application number is in the MSC239019 section. I finished fingerprinting in February, and it has been over 4 months. The case status is still showing “Case Was Updated.” When do I need to check with EMMA to speed up my case process?

Arthur Lee esq. answers:
I-485 processing times vary based upon the type of I-485 you are filing eg. employment-based, family-based, asylum-based, etc., and which local field office is adjudicating your I-485 application. The field office adjudicating your application will typically be your geographically-located local USCIS field office. You can visit the USCIS website page for processing times (https://egov.uscis.gov/processing-times/) and enter your case type (I-485, and specify which type), and your field office, and the website will inform you of the normal processing times for your type of I-485 application. You can also enter the date in which your I-485 application was filed at the bottom of the page. Once you enter that, the webpage will tell you whether your case is being processed normally or if it is outside normal processing times. If it is outside normal processing times, then you may file an eRequest or chat with EMMA to place a service request to inquire about the status of your case.

Article: ARTIFICIAL INTELLIGENCE WORKER IMMIGRATION – PART 1 by Arthur Lee, Esq.

As published in the Immigration Daily on October 10, 2023

This is the first of a two-part article on the artificial intelligence immigration problem with the PERM system; the NIW option; and a possible solution.

Part 1 – The Artificial Intelligence Immigration Problem with PERM and the NIW Option

The introduction of ChatGPT, Bing Chat, GitHub CoPilot, and all the other variations of artificially intelligent chat bots has ushered in a new age of artificial intelligence (AI) which has created a boon in demand for AI-specialized employees. Per Forbes Advisor, the AI market size is expected to reach $407 billion by 2027, and AI is projected to create 97 million jobs worldwide.[1] Since AI is the next disruptive phenomenon of human advancement and will likely drive the global economy in the near future, nations are vying for leadership in this space. While the United States had been a top tier attractor of global talent for important endeavors in the past, the highly restrictive immigration policies for business-related immigrants and visa holders combined with long wait times and uncertainty may deter top AI talent from working for US companies. This could result in the US losing leadership in the global economy and lagging other countries such as China or even neighboring Canada in AI competence. 

The difficulties in attracting high-end AI talent with respect to US policy in affording legal status and permanent residence to such employees include the following:

  • The lack of a direct classification for AI specialists when it comes to sponsorship for permanent residence. Employers and their attorneys typically sponsor AI employees under EB-2 or EB-3 utilizing job titles that match closely with jobs officially recognized by the Department of Labor (DOL). When a job does not have a direct match with a “generic” Department of Labor title and duties, the sponsoring employer typically “couches” the employee’s duties/title toward one that is recognized by the DOL. For instance, according to techtarget.com, one of the top AI jobs in demand is an AI Product Manager.[2] Of note, there is no official DOL O*NET entry for “product manager” let alone “AI product manager.” The same applies for machine learning engineers, natural language processing engineers, and many other common AI jobs. This causes sponsors to have to modify their employees’ jobs to fit the mold of a recognized DOL job–a task which is comparable to fitting a square peg into a circle. Along with this comes uncertainty as to whether the Dept of Labor will recognize the AI job at a specified wage, and ultimately whether a green card petition will be approved.

  • The unacceptably long time it takes for the PERM labor certification and sponsorship process to complete. The Department of Labor lacks the resources to issue expedient prevailing wage determinations and labor certification approvals. After submitting a proposed job to Department of Labor via ETA 9141, it currently takes about 6 months to receive a prevailing wage determination. After that, the test of the US labor market usually takes about 3-4 months, then the employer can submit a PERM labor certification application (ETA 9089). The DOL is now taking approximately 11-12 months without audit to issue a decision on the labor certification. Once certification is received, the employer may file an immigrant visa petition (I-140) on behalf of the AI employee. (Concurrent filing with Form I-485 is possible where the priority date has reached the visa availability date, but is likely not available in most cases currently in light of the backlogged availability dates). The I-140 takes about 6 months or so for adjudication. Once the employee’s priority date (the date that ETA 9089 was submitted) is current, the foreign worker can apply for the green card (Form I-485).

    Even assuming there is current visa availability (for the Oct. 2023 visa bulletin, only the EB-1 category is current in all countries except China and India), the process from start to finish typically takes well over 2 years. It takes substantially longer for many applicants in jurisdictions in which employment-based I-485 applications are backlogged (e.g. the NYC field office processing time is listed as 21.5 months for such cases)[3]. For those from backlogged countries such as China or India, the process can take even longer–potentially greater than 10 years for India-born. This long period combined with the uncertainty of a positive result and the requirement for a foreign worker to maintain legal status throughout the green card process is a strong deterrent to top AI workers thinking of bringing their talents to the United States.

    Due to the long wait and uncertainty of the PERM labor certification process, more petitioners have turned to national interest waiver (EB-2 NIW) cases to shorten the process. NIW cases can be filed by noncitizens alone or by companies petitioning for noncitizens. The EB-2 NIW allows a petitioner to skip the requirements of a job offer and a test of the US labor market if it can demonstrate that the employee’s proposed endeavor has substantial merit and national importance, he/she is well-positioned to advance that endeavor, and on balance, it is beneficial to the US to waive the labor certification requirement. In theory, a valuable AI employee working for a US company is engaged in a nationally important endeavor for the US to advance the country’s overall AI capabilities. However, the flexibility of the NIW requirements combined with the recent spike in popularity of EB-2 NIW lead to uncertainty and inconsistency in quality and timing of adjudications.[4] The EB-2 NIW is akin to a grant application. A foreign worker will express his/her case on the benefits his/her skills will bring to the United States and why the job offer requirement should be waived. The flexibility given to adjudicators for NIW applications brings uncertainty to the applicant. Especially as USCIS is now receiving significantly increased numbers of EB-2 NIW applications, there is more “competition” for favorable adjudications on this type of application. The more applications USCIS receives, the longer the EB-2 NIW processing times[5], and the more discerning USCIS officers will be on granting EB-2 NIW status. The more sub-par petitions USCIS receives (especially in one category such as AI), the more likely an adjudicating officer will be inclined to issue requests for further evidence (RFEs) and notices of intent to deny (NOIDs) and denials even in cases that are deserving of approval. Therefore, there is a chance that a highly qualified AI worker would be denied an EB-2 NIW. The EB-2 NIW adjudications, outside of objective evidentiary submissions such as awards, grants, and credentials, may therefore be decided in who can compile the most persuasive NIW applications and/or hire the best immigration lawyers.

[1] Forbes Advisor, “24 Top AI Statistics And Trends in 2023” by Kathy Haan (Apr. 25, 2023). https://www.forbes.com/advisor/business/ai-statistics/

[2] Tech Target, “10 Top AI Jobs in 2023” by Andy Patrizio (Aug. 17, 2023). https://www.techtarget.com/whatis/feature/Top-AI-jobs

[3] USCIS check case processing times (Form: I-485, Form Category: Employment-Based Adjustment Applications, Field Office: New York City NY) https://egov.uscis.gov/processing-times/

[4] The number of EB-2 NIW applicants has approximately doubled in one year. In Q1 of FY 2022, 4,883 applications were received. Form I-140 Immigrant Petition for Alien Worker By Fiscal Year, Quarter, and Case Status Fiscal Year 2022 (Q1-Q4) https://www.uscis.gov/sites/default/files/document/data/I-140_FY22_Q4.pdf. In Q4 of FY2022, the number jumped to 6,917. In Q1 of 2023, USCIS received 8,806 EB-2 NIW applications. The approval rate decreased from 93% in Q1 of 2022 to 84.6% in Q1 of 2023.

[5] Posted processing times for NIW cases are 11-14 months. There is an option for premium processing that confers a decision or further action within 45 calendar days. However, it comes at a cost of $2,500.