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.