H-1B Overhaul Plan Risks Undermining Biden’s AI Workforce Policy

Field of study mandate said not to align with Biden AI goals Concerns about gaming lottery drove much of proposed changes Proposed regulatory changes to the H-1B visa program threaten to undercut the goals of a recent White House executive order on artificial intelligence, employers, colleges, and policy groups warn. The sweeping proposal that US Citizenship and Immigration Services released last fall was crafted with the intent of modernizing the specialty occupation visa heavily used by the tech industry and offering new flexibility to workers. But if the final version of the rule tracks the proposal, new eligibility criteria and definitions will actually make it harder to hire the talent needed for roles in emerging tech fields like AI, according to many of the over 1,300 public comments submitted on the proposal. Among the most notable proposed changes, the regulations would overhaul the annual H-1B lottery system, which USCIS uses to select petitions to process because demand far exceeds the supply of 85,000 visas each fiscal year. The agency has proposed basing lottery selection on individual workers, rather than the current practice of selecting based on employer submissions—which allows for multiple registrations to be filed on behalf of the same worker. Businesses say that shift, proposed to weed out companies gaming the lottery, would level the playing field for securing the visas. At the same time, the proposed rule would modify the definition of what qualifies as a “specialty occupation,” adding the requirement of a direct relationship between a degree held by a potential H-1B employee and the position the employer aims to fill. A role also wouldn’t qualify as a specialty occupation under the proposal if it requires only a general degree such as engineering without further specialization. That added restriction would stymie hiring in interdisciplinary fields like AI or business intelligence and adopt an approach already rejected in court rulings, pro-immigration groups including the American Immigration Lawyers Association said in comments on the proposed rule. The reality is employers are seeking to build teams of workers with a range of knowledge and backgrounds, said Divyansh Kaushik, associate director for emerging technologies and national security at the Federation of American Scientists. “USCIS is essentially going against what the market considers best practice,” he said in an interview with Bloomberg Law. “It appears the language is trying to solve government’s needs, not the user’s needs.” The requirements of most technology jobs can change significantly after a person moves from higher education into the workforce, said Jennifer Young, CEO of the Technology Councils of North America. “It’s not really keeping up with the times,” she said of the proposal. “Flexibility is required because these jobs are changing so rapidly.” Targeted in AI Order The proposed H-1B changes were released the same month that President Joe Biden issued an executive order that made adding foreign talent with essential expertise a central piece of his administration’s policy vision on artificial intelligence. The order directed the State and Homeland Security departments to consider policies that would lower visa barriers for researchers and students working in AI or other critical new fields. The order specifically targeted J-1 research scholar visas; F-1 visas for students in science, technology, engineering, and math fields; and H-1B visas for regulatory changes. While industry advocates welcomed the immigration provisions of the executive order, they said it also underlined the need for Congress to make streamlined access to visas and to increase the numbers of visas available for foreign talent. The H-1B program in particular is the main pathway for employers to bring in international workers with at least a bachelor’s degree in fields like technology and engineering, but the 85,000 visas issued annually don’t even come close to what employers are seeking. Entries for the annual H-1B lottery have skyrocketed since the government adopted an online registration system, surpassing 750,000 registrations for this fiscal year alone. Those numbers reflect growing demand for the visas. But USCIS also says they demonstrate attempts by at least some users to cheat the system by submitting multiple entries on behalf of the same worker to increase the odds of selection. Those particular concerns drove much of the draft regulations even as the agency sought to lower barriers for other program users. USCIS didn’t immediately respond to a request for comment on the feedback. Unnecessary Hurdles Tightening specialty occupation standards by requiring a degree be “directly related” to a position adds unnecessary hurdles for employers and contravenes the Biden executive order, Rep. Zoe Lofgren (D-Calif.) said in public commentson the rule. A Silicon Valley lawmaker, Lofgren has been one of the biggest advocates in Congress for updating the employment-based immigration system. USCIS said in its proposal that the suggested new regulatory language would codify existing practices and shouldn’t be read as requiring a singular field of study. For example, a degree in electrical engineering or electronics engineering may qualify for an electrical engineer position, the agency said. The draft regulations don’t mention artificial intelligence directly. For any job to qualify as a specialty occupation, the proposal states that “a position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, provided that each of those qualifying degree fields or each body of highly specialized knowledge is directly related to the position. That fails to account for the way industry hires talent with a range of scholarly specialties in developing fields, Lofgren wrote. “Across industries, employers have trended towards hiring teams with degrees and skills that complement each other from across various academic backgrounds. This is true for the Artificial Intelligence (AI) workforce, as well,” she wrote. “As AI makes its way into various industries not historically associated with the use of AI, such as agriculture and healthcare, employers will need to hire professionals with knowledge specific to the industry itself, not just those who will have the academic background traditionally associated with AI fields.” The new eligibility standards would increase scrutiny of H-1B petitions and thus denials, and would “open the door to even narrower interpretations of H1B eligibility under future administrations,” Scott Corley, executive director of the Compete America Coalition, wrote in the organization’s comments. The coalition is made up of employers that advocate for reform of the high-skilled immigration system. Although the draft was a thoughtful update to H-1B regulations overall, the proposed definition of specialty occupation “really does risk putting the wheel in the ditch,” said Bo Cooper, a partner at Fragomen, Del Rey, Bernsen & Loewy LLP. The proposal would put agency officials’ focus on broad labels of positions and degrees when adjudicating petitions, he said in an interview with Bloomberg Law. That change would potentially lead to petition denials for workers who are actually qualified under the statute, he said. “The basic equation should be is there a connection between the course of study and the job duties required for the position,” Cooper said. “If you focus too much on labels, then that doesn’t align with the realities of university-level education. Normally, emerging fields come first and then degrees to support those specialties follow.” For more information visit us at https://www.beverlyhillsimmigrationlaw.com/.