Distinguished Immigration Counsel @IFP, trying to make the immigration system we're stuck with work better
Washington, DC
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When a policy can only be changed through rulemaking, can a federal agency finalize a regulation without providing a rational weighing of the costs and benefits? Considering less burdensome alternatives? No and no.
Because of the "no's" a federal district court judge this afternoon enjoined DHS's new rule to eliminate Duration of Status and reduce academic flexibility for international students.
Huge gratitude and congratulations to @m_clem, @JeremyLNeufeld, and @AmyMNice!
Their excellent analysis was a key reason that this Trump administration action was found to be arbitrary and capricious:
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Four Qs and As on the $103,265 fee USCIS is proposing be paid with any H-1B petition subject to numerical limits.
Does USCIS credibly show how 85,000 cap-subject petitions will continue to be filed annually? No.
Did USCIS frame its proposal's success as contingent upon continuing to meet the annual cap? Sure did.
Does USCIS have authority to collect fees from H-1B employers to cover the State Department’s transportation of refugees being resettled in the US, wage and hour investigations at the Labor Department, vetting at ICE of noncitizens in removal proceedings, and *billions* of dollars of other costs annually incurred across the nation’s immigration system? Nope.
Doesn’t it seem likely that when Congress authorized an Immigration Examinations Fee Account restricted to “providing immigration adjudication and naturalization services,” it meant “adjudications and nationality” activities of the Examinations branch of INS which is now USCIS? Yes.
In a new IFP explainer, @cojobrien @JeremyLNeufeld @HunterWieman Ryan Redmer and I discuss all the Qs and As: ifp.org/explaining-the-propo…
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I've spent a lot of time trying to understand how DOL's plans for changing prevailing wage requirements for high-skilled immigration would work.
In a new piece, I explain why a new approach is needed to be fully consistent with controlling statutes, and why DOL's default plan may open the agency up to greater legal risk.
DOL is required by law to protect US workers by ensuring that the employment of foreign workers does not adversely affect the wages and conditions for similar US workers.
DOL said in its 2026 Notice of Proposed Rule Making that it’s considering a new approach called "Experience Benchmarking" that would be a radical departure from historic practice, and has two large advantages over alternatives.
1. It ensures employers aren’t able to employ H1B professionals and pay them less then an American with the same education and experience in the same occupation and location
2. It does not baselessly close off the international talent pipeline that is so important for US innovation, entrepreneurship, economic growth, and progress in critical fields.
While it's very different from how prevailing wages have worked in the past, I believe this system is not only practical and feasible, but is the prevailing wage approach most consistent with controlling statutory authorities.
More details here: ifp.org/experience-matters/
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DHS says they are working on a major reform of “practical training,” which lets students work before getting another visa. @WSJ reports one idea is a $100k fee on OPT.
Are there things DHS can do to “better align” (quoting DHS’s Unified Regulatory Agenda note) the practical training program for international students while *avoiding* the unmitigated disaster of eliminating the retention of international graduates of the nation’s research universities through a $100,000 per student tax??
Of course!
How about *first* eliminating the ability to participate in practical training on day one in a degree program and stop certifying “day one CPT schools” as authorized to sponsor F-1 students? DHS’s data show that for those recorded as participating in curricular practical training from schools that advertise themselves as “day one CPT” schools, there has been an over 29,000% increase (from 83 in FY2005 to 24,945 in FY2022).
Can DHS legally justify its reported plan to tax the Optional Practical Training program out of existence by imposing a $100,000 fee for access to post-graduation OPT?
Doubtful.
DHS cannot just claim that a large OPT payment is a condition left to the executive branch to establish regarding access to post-graduation experiential learning.
Not when Congress has spoken on when and how much fees can be charged!
Congress has authorized two fee structures: a SEVIS fee and the USCIS (I-539) fee. But both have guardrails that mean a $100,000 fee is not allowed.
In *1996* Congress said (8 USC 1372) that the executive branch should establish a Student and Exchange Visitor Program to track all international students, scholars, and researchers in the US. Congress said that after the program was launched, fees could be revised by the executive branch as needed to collect the funds to carry out the program. We didn’t get around to it till post-9/11, when the Student and Exchange Visitor Information System (SEVIS) was launched in 2003. SEVIS fees have been adjusted various times, most recently in 2019 by the first Trump administration, and are currently $320 for each student (F and M visa holders) and exchange visitor (J visa holders).
If DHS tries to impose large taxes on the OPT program via SEVIS fees, DHS cannot justify it by arguing the costs of carrying out SEVIS increased by 23,000% ($100,000 fee compared to current $320 fee).
The other place DHS might try to put a $100,000 fee is the USCIS fee. In *1989* Congress said (8 USC 1356(m)) that the nation’s immigration adjudications would no longer be funded by the taxpayers and instead would be paid for by the immigrants and those sponsoring them for status. Congress said that fees should be set based on the costs of providing such adjudication services. Under the new Duration of Status elimination rule, international students will be charged $420 to apply for an extension of stay before USCIS when they want to obtain OPT.
If DHS tries to impose large taxes on the OPT program via USCIS fees, DHS cannot justify it by arguing the costs of extension of stay adjudications increased by 23,000% ($100,000 fee compared to current $420 fee for extension of stay).
If DHS can’t justify a $100,000 fee on the basis of the cost of SEVIS or USCIS adjudications, can it make a new fee some other way? Not when Congress has already laid out what fees are allowed!
ALT 8 USC 1372
ALT 8 USC 1356(m)
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“When disaster strikes and all hope is gone, get down on your knees and pray for Shackleton.”
To @lutherlowe’s good point about the connection between OPT and making progress in AI here in the US: 42 of the top 50 AI firms are US-based, and 25 of those 42 US firms were co-founded by immigrants - with over 70% of those immigrant founders first coming to the US as students whose initial work here was through Optional Practical Training.
Disaster to tax OPT access out of existence. We may need Shackleton.
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Amy Nice retweeted
One critical area where this report misses the mark: international scientists.
Being the top destination for global science talent is America's superpower.
The smart response to some scientists leaving the US after grad school would be to make it easier for them to stay.
In response to @POTUS's call for a revival of America's scientific enterprise, today I’m releasing Science: A New Golden Age.
This report is a blueprint for renewing American scientific leadership for the 21st century.
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Amy Nice retweeted
This was a good opportunity to advocate for an immigration policy that captures the smartest people around the world to the advantage of America, and instead it complains about the fact that immigrants get PhDs.
In response to @POTUS's call for a revival of America's scientific enterprise, today I’m releasing Science: A New Golden Age.
This report is a blueprint for renewing American scientific leadership for the 21st century.
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Amy Nice retweeted
It's sad to see how much we are hurting the USA in future competitiveness and talent! Most people don't realize how much of tech innovation and hence GDP growth comes from foreign talent in the USA. Innovation and GDP growth is sure to decline.
US visas issued to international students fell by roughly a third in 2025. Today, DHS finalized changes to a rule known as "Duration of Status" — a move that will help lock that decline in place. The fallout for the STEM workforce, innovation, and economic growth could be severe.
A sustained one-third decline in foreign STEM graduates entering the US labor force would shrink the high-skill STEM workforce by 6.2% overall and by 11.5% at the PhD level. Over a decade, that would cut annual US GDP by $240 billion to $481 billion, comparable to losing an entire state's economy.
That's the estimate from @AmyMNice, in a guest research brief for Hoover's Immigration Initiative, drawing on research she co-authored with @m_clem and @JeremyLNeufeld.
Read the full brief: hoover.org/research/breaking…
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This is a major rule change that Congress can disallow under the Congressional Review Act - let’s make that happen? Why are we taking steps to break the international talent pipeline to the US of A? Why don’t the new fixed periods of stay match the expected time needed to complete degrees and practical training?Inquiring questions for inquiring minds.
US visas issued to international students fell by roughly a third in 2025. Today, DHS finalized changes to a rule known as "Duration of Status" — a move that will help lock that decline in place. The fallout for the STEM workforce, innovation, and economic growth could be severe.
A sustained one-third decline in foreign STEM graduates entering the US labor force would shrink the high-skill STEM workforce by 6.2% overall and by 11.5% at the PhD level. Over a decade, that would cut annual US GDP by $240 billion to $481 billion, comparable to losing an entire state's economy.
That's the estimate from @AmyMNice, in a guest research brief for Hoover's Immigration Initiative, drawing on research she co-authored with @m_clem and @JeremyLNeufeld.
Read the full brief: hoover.org/research/breaking…
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Thanks to @HooverInst for the invite to write a guest essay on these important topics. Read the full essay here: hoover.org/research/breaking…
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An @IFP @matthewesche move: There's a problem, do the complex analysis to explore it, share the data in the public square that will help make progress on solving the problem. Boom!
At @IFP, we’ve spent the past 3 years thinking about all the different ways the US government & philanthropy fund R&D.
Until now, R&D funders haven’t had a systematic way to match the innovation problem to the right funding tool.
We built THE ATLAS OF INNOVATION to fill that gap.
atlasofinnovation.org
Alongside @UChi_MSA, we’ve boiled down thousands of hours of research into a handful of questions covering how much the R&D funder knows about:
- the problem they want to solve
- the solution it should have
- the team that should build the solution
Why the Atlas matters:
The US government spends close to $200 billion every year on R&D. And after the Anthropic and OpenAI IPOs, there will be hundreds of billions of dollars in new philanthropic giving.
Choosing the correct funding approach to the social problems they’re trying to solve will mean the difference between success and failure.
For example, NSF research grants have helped seed breakthroughs from MRI machines to search engines, but grants aren’t built to deliver the kind of industrial speed and scale that a project like Operation Warp Speed required.
Picking the wrong funding approach can leave programs behind schedule, over budget, or without anything to show for all the money they spent.
How we built the Atlas:
1. We began by creating a matrix of dozens of considerations that a thoughtful policymaker or funder would ideally weigh before deciding how to fund a project.
2. We looked at every major funding approach, from grants to R&D tax credits to advance market commitments, analyzing when they work well and when they fail to meet the mission.
3. We spent months deep in the weeds of contract theory and incentive design, looking at historical examples and the state-of-the-art research in innovation economics.
4. We then worked to turn that research into a tool that time-strapped policymakers and philanthropic funders could rely on at the start of an innovation funding cycle.
5. Three years later, we are launching just that: a new (and visually stunning) website to help funders decide how to best incentivize innovation. And all they have to know… is what they currently know about their innovation goal! The Atlas takes care of the rest.
How to navigate the Atlas:
Answer questions about your goal to find the funding approach aligned with the information you have.
Each funding mechanism has its purpose for particular technologies and specific moments in development.
There shouldn’t be an ARPA for every field, just like we don’t need a prize or AMC for every innovation. The Atlas helps you navigate those tradeoffs.
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Can USCIS eliminate the ability of noncitizens to adjust status to permanent resident in the US, requiring them to return home and consular process at the American Embassy in their home country before returning to obtain green card status? Nope.
Because _Congress_ said adjustment of status is available. In 1960. And since then has amended the adjustment of status law 20 times, setting new restrictions. This is not a “loophole.”
Is USCIS establishing a new standard in its May 21st Policy Memo that any noncitizen must prove “extraordinary circumstances” in order to be eligible for adjustment of status to permanent resident here in the US?
Well, nowhere in the Policy Memo does the agency use the term “extraordinary circumstances” - Crtl-F, it’s not there.
USCIS has binding regulations that set out the requirements for adjustment of status, and if it wants to change those rules, it must comply with the Administrative Procedure Act and propose a new regulation.
A Policy Memorandum cannot conflict with a law that has been on the books for 65 years.
Does USCIS have discretion when it reviews applications to adjust status? Yes!
Can it do through the back door what it cannot do through the front door? Nope.
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Nearly 60% of applied STEM R&D in America, and 90% of experimental, is done by industry. Yet, J-1 researcher visas remain underutilized by companies hiring international advanced STEM degree holders - often key to complement the work and innovation by Americans. Thanks to @HooverInst for the conversation.
90% of experimental STEM R&D is now funded and performed by companies, yet the J-1 researcher visa remains largely associated with academia. @IFP's @AmyMNice examines what that gap means for companies seeking international research talent.
Learn more: hoover.org/research-teams/j-…
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What are the right questions about H-1B wage gaps? (Here are three, and the answers.)
Is there a systematic approach (without Congress taking action) that can ensure each individual H-1B professional a US employer seeks to hire is indeed paid at least the wages a similar American would receive for that work? Well, yeah, experience-benchmarked prevailing wages.
How can we best position the H-1B visa category as a tool to attract and retain high-skilled immigrants to the US workforce so they contribute to US innovation, productivity, and progress in critical fields—while also avoiding underpayment compared to similar American professionals? *Experience benchmarking* by agency action for prevailing wages.
Can we avoid 1 in 6 H-1B visas going to workers making less than similarly qualified Americans? Yes, we can. DOL should adopt … experience benchmarking instead of sticking with their uniform percentiles approach.
In a Hoover essay I explain why these are the right questions: hoover.org/research/h-1b-wag…
In a new analysis with @cojobrien and @JeremyLNeufeld we dig into experience benchmarking: ifp.org/prevailing-wage-benc…
Terrific Work from @IFP's rockstar Amy Nice: The H-1B Wage Gaps: Are We Asking The Right Questions? hoover.org/research/h-1b-wag… via @HooverInst #immigration #H1B #highskilled
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A new rule was just proposed to update the prevailing wage requirements for H-1B. It relies on what @cojobrien, @JeremyLNeufeld, and I call “Blind Benchmarking.” It’s blind to the actual credentials of the H-1B professional *and* relies on a dataset with *zero* information on experience or education of US workers.
Shouldn’t the minimum prevailing wage for hiring noncitizen professionals just be the median wage Americans receive with the same education and experience in the same occupation and geography? That’s certainly what the *law* requires (“prevailing wages shall be commensurate with education, experience, and level of supervision”).
Instead, with Blind Benchmarking DOL still uses the uniform percentiles it has relied on for 25+ years and just raises those fixed percentiles. With this Blind Benchmarking, DOL’s primary proposal in the Notice of Proposed Rulemaking allows some workers to be barred from H-1B status even though they get paid *more* than similar Americans and allows other workers to have access to H-1B status despite being paid *less* than an American with the same education and experience.
In a new analysis @cojobrien, @JeremyLNeufeld, and I dig into the proposed regulation: ifp.org/prevailing-wage-benc…
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Good to discuss with @HooverInst the critical role of the US STEM workforce, including international students earning degrees here, in tech competition with China to make progress in critical fields. Don't we want as many advanced STEM degree holders as we can get, both domestic and international, contributing to American innovation and productivity?
As we wrote in our paper for the National Academies in October, @m_clem @JeremyLNeufeld and I think it's vital we *retain* the international STEM talent pipeline through US universities.
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Did you know that over the last decade US industry hires of STEM PhDs have increased by about 100% in many sectors? If roughly 50% of PhDs across science, tech, and engineering disciplines granted at US research universities aren't to US-born US citizens, there's a 50-50 chance the ideal candidate might be an international student. Just sayin.
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Fact: International students, scholars, and researchers who come to the nation's research universities make important contributions that benefit Americans and America. Myth: International STEM graduate students take slots for US-born students. Great to talk to @HooverInst about this important topic.
International students make up over half of all STEM graduate programs, driving the belief that they are taking spots away from US-born students. But is that really the case? Hoover Institution fellow Paola Sapienza and @IFP Distinguished Immigration Counsel @AmyMNice say the data tell a very different story.
To learn more about the economic effects of immigration, visit: hoover.org/research-teams/j-…
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It’s all coming together. NSF is now going to make awards focused on talent and the autonomy to hire the best STEM experts to respond to an evolving tech landscape. *Looks at notes.* A way to retain top advanced STEM degree international talent working in the national interest who complete Masters, PhDs, and postdocs on US campuses?
NSF is launching one of the most ambitious experiments in federal science funding in 75 years.
The program is called Tech Labs, and the goal is to invest ~$1 billion to seed new institutions of science and technology for the 21st century.
Instead of funding projects, the NSF will fund teams. I’m in the @WSJ today with a piece on why this matters (gift link): wsj.com/opinion/science-fund…
Here’s the basic case:
1) Most federal science funding takes the form of small, incremental, project-based grants to individual scientists at universities.
2) The typical NSF grant is ~$250k/year to a professor with a couple of grad students and modest equipment over a few years. This is a perfectly reasonable way to fund some science, but it's not the only way.
3) A healthy portfolio needs more than one instrument. Project-based grants are like bonds: low-risk, steady, safe. But no one trying to maximize long-run returns would put 70% of their portfolio in bonds.
4) Yet that's basically what our civilian science funding portfolio looks like. Around 3/4ths of NSF and NIH grant funding is project-based.
5) Tech Labs is NSF's attempt to diversify that portfolio. The Tech Labs program is aiming for:
- $10-50 million/year awards per team
- 5+ year commitments
- Measuring impact through advancement up the Tech Readiness Level scale rather than papers published
- Up to ~$1 billion for the program
- Supporting research orgs outside traditional university structures
6) Scientific production looks very different than it did when the NSF launched 75 years ago. The lone genius at the chalkboard can only do so much. Frontier science + tech today is increasingly team-based, interdisciplinary, and infrastructure-intensive.
7) The team behind AlphaFold just won the Nobel Prize in Chemistry. It came from DeepMind, an AI lab with sustained institutional funding and full-time research teams. It would be near-impossible to fund this kind of work on a 3-year academic grant.
8) Same pattern at the @arcinstitute (8-year appointments, cross-cutting technical support teams) and @HHMIJanelia (massive infrastructure investments to map the complete fly brain). Ambitious science increasingly needs core institutional support, not a series of project grants stapled together.
9) Similarly, Focused Research Organizations (@Convergent_FROs) have showcased a new model supporting teams with concrete missions and predefined milestones to unlock new funding.
10) There’s a whole ecosystem of philanthropically-supported centers doing amazing research, like the Institute for Protein Design, the Allen Institute, the Flatiron Institute, the Whitehead Institute, the Wyss Institute, the Broad — the list goes on.
11) But philanthropy can’t reshape American science alone. The federal government spends close to $200 billion each year on research and development, an order of magnitude more than even the largest foundations.
12) If we want to change how science gets done at scale, federal funding has to evolve. And the NSF and NIH don’t have dedicated funding mechanisms to support or seed these sorts of organizations.
13) Earlier this year, I started working on a related framework called “X-Labs” that built on all this exciting institutional experimentation that’s been happening within the private and philanthropic sectors. It’s time for the federal government to step into the arena: rebuilding.tech/posts/launch…
14) Traditional university grants are still important for training the next generation of scientists and for certain kinds of curiosity-driven work. But after 75 years of putting nearly everything into one model, we should try something different.
15) And key program details are still being developed! You can reply to the Request for Information with suggestions or feedback on how to design this program here: nsf.gov/news/nsf-announces-n…
16) Science is supposed to be about experimentation. Science funding should be too.
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