How to Reform High-Skilled Immigration

“People called it the Oprah Visa”

The U.S. is competing with adversaries and allies alike for the world’s best scientists, researchers, and engineers. Yet for decades, we’ve struggled to retain top talent. “If the United States wants to remain the world leader in innovation,” former Google CEO Eric Schmidt recently wrote, “it can no longer afford to ignore the talent waiting beyond its borders.” 

via Brookings

Amy Nice has been on the inside of immigration law and policy for decades, and she knows first-hand the challenges associated with making big policy changes. Nice is joining the Institute for Progress as Distinguished Immigration Counsel, and is also Distinguished Immigration Scholar at Cornell Law. In this interview, we discuss: 

• How can the U.S. attract and retain more high-skill STEM immigrants?

• How can existing immigration pathways keep STEM talent in the U.S. for longer? 

• How can you remain focused on your priorities in a job at the White House? 

Recently, Nice served at the White House Office of Science and Technology Policy (OSTP) as Assistant Director for International Science and Technology Workforce. She practiced at Dickstein Shapiro, served in the Office of General Counsel in the U.S. Department of Homeland Security, and was executive director of immigration policy at the U.S. Chamber of Commerce.

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What were you working on at OSTP?

I joined OSTP in June 2021. I led the STEM immigration policy portfolio, focusing on federal agency policies that could help attract and retain international STEM talent. 

On my first day, I arrived with a little leather folder that contained a bullet list of problems I wanted to work on. I asked my boss: “What sort of approval process do I follow to get started?” He said: “Just get started. If you run into problems, let us know.” I had four things topping my list: 

First, I wanted to increase the number of fields that were eligible for the Optional Practical Training Extension for STEM Students (STEM OPT).

International students with F-1 visas — required for them to attend U.S. colleges and universities — who received STEM degrees could apply for a two-year extension of their optional practical training (OPT), which would allow them to remain in the U.S. for a total of 36 months to gain practical employment experience related to their field.

Our question was: Can we make more fields that meet the existing regulatory definition eligible for the STEM OPT extension? We thought if there were more STEM experts who can live and work in the United States for up to 3 years after earning their degree, this could be consequential, given that nearly three-quarters of STEM OPT participants have earned a masters degree in the U.S. 

From my previous time at the Department of Homeland Security (DHS), I knew someone who leads the DHS Student and Exchange Visitor Program who I thought might be interested in working on this. I reached out and she said: “I’d love to talk with you about that.” We got started in my first week, and DHS announced in January 2022.

I also wanted DHS to keep the STEM OPT extension list updated and modernized. We worked with the Office of the General Counsel to regularize the process where stakeholders could nominate fields that involve innovative research or technology to be on the list. The goal was to institutionalize the process, rather than doing it once and forgetting about it again until someone in the future takes it up. 

Second, I wanted to make it so companies could host J-1 researchers. 

The J-1 visa is a non-immigrant visa that’s designed for foreign nationals to temporarily stay in the U.S. for specific educational, research, training, or cultural exchange purposes. J-1 gets used by professors, camp counselors, summer interns, and even au pairs, and it’s a program administered by the Department of State. There’s a category for researchers, but it’s primarily used by universities and hospitals.

The statute, as written, seemed like it could be used for companies, too, and it seemed the State Department’s existing regulations also permitted it. The J-1 is powerful for people in STEM R&D because it allows them to stay for up to five years, and there are no numerical limits or country caps. I found out a principal reason we hadn’t applied the J-1 researcher visas to companies was that no one had ever thought about focusing on it. This led to the development of the Early Career STEM Research Initiative, which I’m working to help promote outside of government, figuring out how to get people to use it. 

This experience taught me about the dynamics of certain bureaus — many of which are looking for ways to have a deliverable that’s useful to the administration. And here was someone from the White House saying “We think it could be a really cool opportunity to use science and technology policy to facilitate more exchanges with companies in STEM research. What do you think?”

Third, I wanted to expand O-1 visas so they could be used regularly by STEM PhDs. 

A statute enacted in 1990 created the O-1 visa status. When I was in private practice, people in the immigration bar called it the Oprah Visa. It was understood that if you were famous — or just very notable in some other way — you could use the O-1. From 1990 to 2022, U.S. Citizenship and Immigration Services (USCIS), and its predecessor agency, never established guidelines on using this category for STEM PhDs. But that didn’t imply that it couldn’t be used. 

Again, our idea was simple: If we could siphon people who are getting STEM PhDs from the H-1B program and, where qualified, request O-1 instead, we could make the H-1B program more usable without Congress.

Also, H-1B is a random lottery at this point, while the O-1 is in your control. There’s no numerical limit and it doesn't have the same cumbersome process that H-1B has. There’s just a very high standard to qualify.

Part of the problem for the O-1 was the way the regulation was worded. The agency’s regulation could be read to say we’re looking for people who’ve won a Nobel Prize or people who, alternatively, have three of the following eight criteria. Since the setup is “Nobel Prize,” people think they won’t qualify. The truth is, “Nobel Prize” is not actually the standard; it’s just what the regulation says as an explanatory predicate. 

So, the approach was for USCIS to create a working group, and at least for some meetings I was able to attend and actively participate. We went through the eight criteria and provided examples of how someone with a STEM PhD might qualify. Now, outside of government, we have to get the world out to these graduate PhD programs, specifically during their three years of post-completion STEM OPT. Would you qualify for an O-1? What are the steps you have to take? Not everyone will qualify, but if they knew the pathway, they’d have more certainty. 

Finally, I was interested in providing more objective criteria to STEM graduate students on how they could access the National Interest Waiver (NIW) for permanent resident status.

Immigrants who are engaged in endeavors that are in the national interest can self-petition for permanent resident status. We weren’t able to create any new numbers for permanent resident status — only Congress can — but our idea was to create more certainty and predictability. We might get more people to use this category if we could provide more objective criteria about how it applies to both STEM masters and PhD candidates. It has been on the books since 1990, but there’s never been any guidance. We wrote about 15 pages of guidance outlining how this works. We also said that if you’re working in a critical and emerging technology field, that’s in the national interest. We linked to an OSTP report identifying fields of critical and emerging technologies, and created a useful, accessible resource. 

This also has the benefit of helping our own government. Another measure of work that’s in the national interest is work that’s relevant to an interested government agency. Again, this is not rocket science, there's like no insight here. This was always permitted, but it was never announced. There’s a whole section about this in this guidance, describing how an interested government agency can play a role.

After the policy guidance was announced, we had a briefing for just the science and technology directorates at different agencies, and there were 42 different agency staff that listened in, representing over a dozen agencies. Very few of them are actually using it yet, but we created an awareness that this was a new thing they could, in fact, use. 

Amy Nice

What did you do before working in the White House? 

I worked for 20+ years in private practice, and, in 2010, I left to work on immigration policy. I had a variety of roles for 10+ years before coming to the White House, covering legislative reform, rulemaking processes, and coalition building among outside stakeholders. By the time I got this mysterious call from the guy who would become my boss at OSTP, I had learned how to get things done in the arena of immigration law and policy. One of my adult children told me, “Mom, it’s like you’ve been training for 30 years for this job that you didn’t even know existed.” 

My most important experience to prepare for the White House was working at the Department of Homeland Security — learning how the bureaucracy works, and trying to pass legislative reforms for years as the executive director for immigration policy at a large business association, coordinating with the Hill. In both my agency and legislative efforts I came to know that people, process, and politics can complicate everything. 

What was it like being in the White House bureaucracy? 

I spent a lot of time at the beginning trying to figure it out. I was distracted by everything that was getting thrown at me. I realized pretty quickly that I needed to focus on the smallest possible thing that wasn’t meaningless. I wanted to figure out what I could do as one human. That was the impetus to become very focused on my bulleted list of top priorities. 

I jumped in, identifying the specific tasks that I would undertake. I knew I was not going to master everything that was happening in the White House. But you can be very effective just by being sensitive to the politics, the people, and the process that surrounds you. But don’t let it consume you, because by the time you figure that all out, it’ll be time to wrap up.

Ultimately, I learned that one person can make a difference. If you believe in your thing, if you’re enthusiastic about your thing, and if you're a technical expert about your thing, you will find people in the bureaucracy who share your interests. You can’t actually get that much done from the White House unless you have career officials, staff, policy analysts, lawyers, and politically appointed leaders who believe in what you’re doing. It’s very easy for departments and agencies to never get around to your initiative. 

I worked on projects that became policies and were announced — and they probably wouldn’t have happened if I wasn’t there, but it was not rocket science. I was just enthusiastic, and I was a little bit relentless. Departments and agencies would say they have a lot of priorities, but I wouldn’t take no for an answer and would always look to be a partner. I would do research, provide papers, and do analysis. A lot of times that work ended up in the agency's document because they realized I had done the work for them. 

My big takeaways were: 

• In the White House, it’s easy to be overwhelmed by all you don’t know. Don’t force it. It’ll come to you eventually. 

• Take initiative. Don’t wait for the assignment to come to you. Think five steps ahead. 

• You can make a difference. 

Some people, depending on where they are in their career, think that just having the job is enough. No, that wasn’t enough for me. I wanted to see what I could get done. I appreciated my experience so much. I loved everything about my little corner office with five other quantum science guys, the 20-foot ceilings, and the marble staircases. I made a point, every day that I was in person for 18 months, to walk out of the EOB on the Navy Steps side of the building facing the White House, instead of the 17th Street side which was closer to my walk to the Metro, just because I wanted to have that experience — to realize, I survived another day.