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. 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. 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). 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. 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, 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.
 Forbes Advisor, “24 Top AI Statistics And Trends in 2023” by Kathy Haan (Apr. 25, 2023). https://www.forbes.com/advisor/business/ai-statistics/
 Tech Target, “10 Top AI Jobs in 2023” by Andy Patrizio (Aug. 17, 2023). https://www.techtarget.com/whatis/feature/Top-AI-jobs
 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/
 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.
 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.