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Global AI Talent Wars: How Immigration Policies Tip the Scales

The competitiveness of America’s tech sector depends on the technical skills of its workers. American companies rely largely on overseas STEM talent to fill essential roles in increasingly competitive and strategic fields like AI. Pathways to legal immigration and work status have provided the boost American businesses need to maintain an innovative edge and an answer for talented foreign nationals who want to build their careers and lives here.

The war for skilled AI talent will only get hotter. While the U.S. still holds its title as the top country for global AI talent, China is quickly catching up. Today, an outsized proportion of AI experts and top researchers come from China, many of whom opt to work domestically. According to a recent report from the think tank MarcoPolo, China produced nearly half (47% ) of the world’s top AI researchers in 2022, 28% of whom remain in China – a striking increase from 2019 when just 19% of the world’s top AI researchers came from China and only 11% worked there. The same trend can be seen with AI talent from other countries; by 2022, one-fifth of Indian AI researchers chose to work in their home country.

Foreigners still find America very attractive for studying AI and working in the field, but that appeal is beginning to wane. Even though 77% of non-American AI talent remained in America after receiving a PhD in the U.S. in 2022 (down from 86% just two years earlier), restrictive immigration policies, tech layoffs, and growing opportunities in other Western countries mean staying in the U.S. is getting harder and less appealing.

Last month’s landmark Supreme Court decision to overturn Chevron v. NRDC clouds the picture even more. The ruling will have an outsized impact on immigration cases for many years, complicating the legal landscape and creating processing delays and backlogs.

With global competition for AI talent heating up, what will it take to keep the American AI sector competitive in the long run, and what are the most viable pathways for highly skilled foreign workers and companies looking for the best AI talent?

U.S. Immigration Policy in Flux Puts Business and Lives in Flux

At first blush, the Biden Administration’s October 2023 Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence showed promise in helping immigrants and visa holders with AI backgrounds. The order recognizes the importance of foreign talent for American AI businesses and instructs the Department of State, the Department of Homeland Security, and the U.S. Citizenship and Immigration Service (USCIS) to streamline the visa process for noncitizens to study, conduct research, and work on AI initiatives. It also calls for clarified and modernized pathways for noncitizen AI experts for O-1A temporary work visas and EB-1 green cards for individuals who possess extraordinary ability in their field, for EB-2 national interest waiver green cards, and for foreign-born founders of AI startups using the International Entrepreneur Rule.

Unfortunately, few of these changes have been implemented, and in March 2024, the government increased fees and changed the rules to curb abuse in the H-1B visa lottery program, which grants 65,000 visas annually, plus an additional 20,000 for individuals with master’s degrees or higher from U.S. universities. This move has made it more difficult and expensive for employers to hire talented noncitizen AI experts who want to work in the U.S. Because of the number of applicants from India and China, these changes have a more significant impact on applicants from those countries – where an increasing number of AI experts are trained.

Further, the Supreme Court’s overturning Chevron vs. NRDC will have a major impact on immigration cases. The ruling states that courts are no longer required to defer to Federal agencies like the Department of Homeland Security (DHS) or the Board of Immigration Appeals (BIA) for interpretations of ambiguous regulations, a shift that will lead to more inconsistent interpretations and enforcement of immigration laws across jurisdictions, added complexity, and a growing backlog of cases. This uncertainty is, of course, exacerbated by the political atmosphere during this year’s contentious election.

Tech Layoffs Pose Risks to AI Companies and Put Noncitizen AI Workers in Peril

Corporate downsizing also has a direct, personal impact on foreign-born AI workers – and direct implications for AI businesses’ ability to recruit and retain AI experts in the future. Layoffs in the technology sector have been in the headlines for 18 months. According to Crunchbase, more than 190,000 workers in U.S.-based tech companies lost their jobs in 2023, and 56,600 have been laid off in the first six months of 2024. Big Tech AI innovators have not been immune; Meta reduced its headcount by over 20%, and Microsoft, Amazon, and Google have all cut staff.

Many tech companies have stopped or dramatically curtailed their permanent labor certification program (PERM) applications. PERM certifications are issued by the U.S. Department of Labor (DOL) and allow employers to hire foreign workers to work permanently in the U.S. The goal is to assess whether there are not enough qualified, able, and willing U.S. workers to accept the role and whether employing foreign workers will adversely affect the wages and conditions of equally capable American workers. In most cases, a U.S. employer must obtain the PERM certification before submitting an immigration petition to USCIS.

For companies, the PERM process is an expensive undertaking. Costs can be as high as $15k – $20k per case, which adds up quickly for companies hiring thousands of employees. When Google laid off 12,000 in January 2023, it stopped PERM applications that same month, and early this year, the company notified employees that it wouldn’t restart the PERM process until at least the first quarter of 2025. Similarly, Amazon recently informed employees that it was pausing new PERM filings through the end of the year after having suspended them in 2023.

The implications of tech layoffs and the slowdown in PERM applications are far-reaching. Employers that have laid off over 100 employees must suspend their PERM green card process for six months. These businesses are then subject to the labor market test if they rehire for the same role, which means prioritizing American candidates in a tight labor market. Employers must advertise for a role in six places, and if just one qualified person applies for the position, then the PERM process is over for that role.

Being laid off is difficult for anyone, but for individuals who depend on corporate sponsorship to stay in the U.S., loss of employment can have a dramatic impact on their personal and professional lives. Individuals who have worked and lived in America legally for years suddenly find themselves struggling to secure their future immigration status.  Employees who were in the process of obtaining a visa via corporate sponsorship at the time they were laid off must start the process over — and the clock keeps ticking. They must find corporate sponsorship within two months (60 days) or explore another avenue to secure their immigration status. If they are qualified, they could file for an O-1A non-immigrant visa petition or self-sponsored EB-1A and EB-2 national interest waiver (NIW) immigrant petitions (green card). The bar is very high for EB-1A extraordinary ability and national interest waivers, and the process takes six months and often up to two years.

AI Employment’s Path Forward

Fortunately, the picture is likely not so bleak for highly qualified AI tech talent because the requirements for those roles are so specialized and in high demand.  However, for businesses that need to recruit top foreign-born AI talent, forethought and pre-planning are important before starting the hiring process. This is especially true for smaller businesses on tighter budgets:

  • Look for technically qualified candidates at universities: If specialized technical expertise rather than years of employment experience will suit the job requirements, universities with graduate programs are a good starting point. Individuals in these programs can grow into the job, and if they fit the EB-1A or EB-2 NIW criteria, they can self-sponsor. If the foreign national is unable to secure the H-1B visa, the O-1A nonimmigrant petition could be a viable alternative.
  • Know candidates well before hiring: Understand their technical qualifications, expertise, and whether they match the requirements now and in the future. This knowledge will help guarantee that a candidate is the right long-term fit for the role. Plus, seeking highly qualified individuals in a master’s or PhD program where their work is likely published will make the application process easier.

Highly skilled AI experts seeking to work in the United States can pursue several avenues if corporate sponsorship is not valid option:

  • O-1A temporary work visas: The O-1A visa is granted to highly qualified individuals to work in the U.S. for up to three years, with the potential for extensions. Applicants must demonstrate expertise in their field, which typically means holding an advanced degree (master’s or PhD), time in leadership positions, industry awards, speaking at conferences, and published work in their field. O-1 visas require a sponsor and a rigorous application process.
  • Self-sponsored EB-1A Extraordinary Ability and EB-2 National Interest Waivers: Candidates for EB-1A or EB-2 NIW petitions, which provide a green card, must document a demonstrated extraordinary ability in their field – typically with national or international acclaim. Advanced degrees, awards, publications, and media coverage are typically required. Successful EB-1A and EB-2 NIW applicants also receive a green card, enabling them to live and work in the U.S. permanently.

Contributions from immigrants to this country have played a central role in the innovation and technical advances that have made American enterprises global leaders in so many different sectors. Moving forward, competition for the top AI talent will be a major factor in determining the winners. Changes in work status policies, a tight labor market, and election year uncertainty make current times challenging for both talented noncitizen AI workers and American businesses – especially smaller ones which often serve as incubators of innovation.  With the right strategies and proper planning, American AI businesses can retain their innovative, creative edge with the best AI talent and expertise.

Dobrina M. Ustun, Esq. is an immigration and nationality attorney based in Dallas, TX. Her firm, Ustun Law Group, PLLC, provides comprehensive immigration law services to corporations, universities, nonprofits, and individuals seeking visas or permanent residency in the United States. Prior to opening her own practice, Ms. Ustun was an in-house immigration attorney for Infosys Limited, one of the largest professional services companies in the world.