Creating Pathways for Stem Workers Through Non-legislative Means

• Citation: Vol. 6 No. 1
• Publication year: 2024

Creating Pathways for STEM Workers Through Non-Legislative Means

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William A. Stock, Simon T. Nakajima, Diane Rish, and Amy M. Nice ^*

Abstract: In this panel, AILA Law Journal editorial board members and immigration attorneys William Stock and Diane Rish, along with Amy M. Nice, Distinguished Immigration Fellow and Visiting Scholar, Cornell Law School, and Simon Nakajima, Assistant Director for STEM Immigration, White House Office of Science and Technology, discussed various initiatives through non-legislative means to attract and retain STEM talent in the United States through various visa categories. According to the panelists, these initiatives are actions authorized in the Immigration and Nationality Act for the executive branch to undertake.

William Stock

We celebrate, or bemoan, the thirtieth anniversary of the Immigration Act of 1990, which set the fundamental contours of employment-based immigration in the United States, amended by the American Competitiveness in the 21st Century Act. Perhaps we all should have known that it might have been misnamed. It should have been named the American Competitiveness for the 21st Century Act given how hard it is to move legislation through Congress that would help in positive immigration directions.

That provides the impetus for our first panel, creating pathways for STEM (science, technology, engineering, and mathematics) workers through non-legislative means. I want to briefly introduce Diane Rish, who is Senior Manager for Immigration at Salesforce, to my immediate right. To her right, Amy Marmer Nice, distinguished Immigration Fellow and Visiting Scholar with Cornell's Immigration Law and Policy Program. And to my far right, Simon Nakajima, an Assistant Director of the White House Office of Science and Technology, where he is responsible for STEM Immigration. On behalf of AILA Law Journal, thank you all for your participation today.

Diane, can you start by speaking about why is STEM talent so highly desired by U.S. businesses and for our economic competitor countries, but in particular within the tech industry?

Diane Rish

I want to start by saying thank you for the opportunity to speak with you today as part of the inaugural AILA Law Journal symposium. My remarks

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today draw upon my experience working in-house at Salesforce, which is a cloud-based software company headquartered in San Francisco; experience working at AILA National, advocating for business immigration reform on behalf of businesses and working closely with business groups and coalition partners. And finally, working in the private sector as an immigration attorney, representing clients in the advanced technology, semiconductor manufacturing, cloud computing arenas, among others.

We are living through an extremely exciting and unprecedented time in the technology industry, in particular with artificial intelligence (AI) transforming the economy across all sectors, including business, health care, the financial sector, and even the legal field. Although AI technologies and tools have been around for years, it was just a little more than a year ago, in November 2022, when ChatGPT, a generative AI tool, hit the mainstream and really took the world by storm. Just two months after its launch, it is estimated that ChatGPT reached over a hundred million active users, making it the "fastest-growing consumer application in history." ¹ So I think it comes as no surprise that AI is anticipated to drive a massive transformation in all aspects of our daily lives, in terms of how we live and how we work. Just this past summer, Salesforce's Chief Executive Officer, Marc Benioff, reiterated this sentiment, stating that "AI is not just the most important technology of our lifetime, but probably the most important in any lifetime." ² Indeed, the tech industry itself has profoundly shifted since the release of ChatGPT. Many of the world's major tech companies, such as Microsoft, Meta, Google, and even Salesforce, are embracing generative AI, and the generative AI "revolution" as it is being dubbed, and racing ahead to innovate and produce products, services, and business opportunities within the generative AI arena. Salesforce itself has launched a number of AI products. We launched Einstein GPT in 2023. And our most recent launch this year is Einstein Copilot, which is an AI-powered virtual assistant. So, the question now that companies are asking themselves is not "why should AI be embraced," but rather "how can AI be embraced and how can its challenges be mitigated and its potential leveraged to transform business operations?"

More broadly, beyond just AI, tech companies have been driving path-breaking innovation for many, many years within the broader technology arena and are continuing to do so by developing innovative products, tools, and services that service our economy and our research institutions, among other things. It's important to highlight that such innovation has led to the creation of new jobs, new opportunities, and new industries here in the United States. Indeed, tech companies are among the nation's foremost creators of jobs for U.S. workers. ³ Yet to maintain their technological competitiveness in a very fierce and fast-moving global marketplace, tech companies seek to attract and retain top talent with STEM expertise to join their workforce.

To attract and retain this top talent, it's not unusual for companies to recruit both domestically and internationally to really cast a broad net on the

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talent that they can attract. In some cases, that STEM talent comes directly from within our borders here in the United States by way of our higher education system. Indeed, it is one of the United States' greatest advantages—the strength of our higher education system—which attracts students from all over the world to study at our universities and colleges. What we're seeing is that international students are graduating with STEM degrees at a high rate. According to the National Center for Education Statistics in the United States, international students represent nearly half of all STEM masters and half of all PhD graduates in the United States. ⁴

It's not unusual for tech companies to seek out the brightest and the best talent that is out there. Indeed, companies like Salesforce and others are mindful that they are competing with companies across the world, as well as other nations across the world, for this top talent. Companies are mindful that countries around the world are taking their own measures to attract such talent through their immigration laws and policies. We see this in the United Kingdom, Canada, and Singapore, just to name a few countries where, while here in the United States immigrant advocates have been advocating tirelessly to update our immigration laws, these nations are driving forward with new immigration policies to attract this talent as well.

William Stock

In attracting this STEM talent, what does the current adjudication environment look like for U.S. companies that are trying to retain this foreign talent that is graduating from U.S. schools?

Diane Rish

For businesses, and especially tech companies, particularly for those that are leveraging the legal immigration system to attract and retain skilled foreign talent, the adjudication environment has been relatively consistent and favorable in recent years. For example, we've seen a decrease in Requests for Evidence (RFEs) and denials. H-1B denial rates have dropped significantly, from an all-time high in FY 2018 of a 24 percent denial rate, down to just 2.2 percent in FY 2022, and a 3.5 percent denial rate in FY 2023. ⁵ Similarly, we've seen visa appointments at U.S. consulates improve greatly in terms of the wait times to get a visa interview appointment. ⁶ Administrative processing has also decreased substantially at U.S. consulates. ⁷ In practice, this relatively predictable adjudication environment, where companies are experiencing fewer denials, fewer RFEs, and reduced administrative processing delays at consulates overseas has helped to minimize business disruption. This is because it allows employees to travel more easily around the world and reduces the potential

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for lapses in U.S. work authorization, which could occur, for example, when there's an unexpected RFE or denial.

On the immigration policy side, companies are also seeing a much more favorable policy environment, which we'll be talking about in more detail today, particularly with respect to the policies that the Biden administration has put into place that have helped make the United States more welcoming to STEM talent. In January 2022, for example, the Biden administration released a collection of immigration measures to encourage international STEM researchers, students, experts to contribute to innovation and job-creation efforts in the United States. ⁸

William Stock

I think it does point to the fact that the adjudication tone or leadership from the top is an important policy lever that may need to be further looked at as a way of influencing any policy area in particular. In the immigration space, just the sort of tone from the top and saying that this is something we want to facilitate—meaning that when there is clear guidance, more people may feel they can leverage the immigration system, right? What are some of the challenges though within the U.S. immigration system that businesses, and particularly the tech community, are facing at the moment?

Diane Rish

Before I address your question about immigration challenges, I do want to highlight a few policies that have really been instrumental to businesses, and in particular the tech industry, to help attract and retain top talent here in the United States. In particular, I believe the National Interest Waiver (NIW) policy guidance is one of the most impactful measures that the Biden administration has taken toward easing the ability of U.S. employers to...