AI to the Rescue of U.S. Immigration

On October 30, 2023 the Biden Administration acted decisively on the #immigration front. It published "Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence" [accessible at: https://www.whitehouse.gov/briefing-room/presidential-actions/2023/10/30/executive-order-on-the-safe-secure-and-trustworthy-development-and-use-of-artificial-intelligence/]). This executive order (EO) -- among other things -- promises to create new opportunities for many U.S. employers and noncitizens who possess training and talent in artificial intelligence and other "critical and emerging technologies."

The immigration provisions of the EO, found at Section 5.1 ["Attracting AI Talent to the United States," accessible here: https://www.nationofimmigrators.com/wp-content/uploads/sites/906/2023/10/Immigration-provisions-in-the-10-30-2023-Executive-Order-on-the-Safe-Secure-and-Trustworthy-Development-and-Use-of-Artificial-Intelligence-1.pdf], involve mandates to several federal departments to take action in 90 to 180 days of publishing the EO.

To be sure, the devil's in the details; but for now, this could mean big, welcome changes for U.S. employers and foreign citizens skilled in AI and other critical and emerging technologies.

Here is the timing:

-- Within 45 days

The Secretary of Labor must publish a request for information (RFI) to solicit public input, including from industry and worker-advocate communities, identifying AI and other STEM-related occupations, as well as additional occupations across the economy, for which there is an insufficient number of ready, willing, able, and qualified United States workers.

-- Within 90 days?

• The Secretary of State and the Secretary of Homeland Security must take appropriate steps to streamline processing times of visa petitions and applications, including by ensuring timely availability of visa appointments, for noncitizens who seek to travel to the United States to work on, study, or conduct research in AI or other critical and emerging technologies.
• They must also facilitate continued availability of visa appointments in sufficient volume for applicants with expertise in AI or other critical and emerging technologies.

-- Within 120 days?

• The Secretary of State must consider publishing a regulation to establish new criteria to designate countries and skills on the Department of State’s Exchange Visitor Skills List as it relates to the 2-year foreign residence requirement for certain J-1 nonimmigrants, including those skills that are critical to the United States.
• The Secretary of State must also consider publishing updates to the 2009 Revised Exchange Visitor Skills List and consider implementing a domestic visa renewal program under 22 C.F.R. 41.111(b) to facilitate the ability of qualified applicants, including highly skilled talent in AI and critical and emerging technologies, to continue their work in the United States without unnecessary interruption.

-- Within 180 days?

• The Secretary of State must consider proposing a rule to expand the categories of nonimmigrants who qualify for the domestic visa renewal program covered under 22 C.F.R. 41.111(b) to include academic J-1 research scholars and F-1 students in science, technology, engineering, and mathematics (STEM).
• The Secretary of State must also establish, to the extent permitted by law and available appropriations, a program to identify and attract top talent in AI and other critical and emerging technologies at universities, research institutions, and the private sector overseas, and to establish and increase connections with that talent to educate them on opportunities and resources for research and employment in the United States, including overseas educational components to inform top STEM talent of nonimmigrant and immigrant visa options and potential expedited adjudication of their visa petitions and applications.

-- Also within 180 days?

The Secretary of Homeland Security must review and initiate any policy changes he considers necessary and appropriate to clarify and modernize immigration pathways for experts in AI and other critical and emerging technologies, including:

• O-1A and EB-1 noncitizens of extraordinary ability;
• EB-2 advanced-degree holders and noncitizens of exceptional ability; and
• startup founders in AI and other critical and emerging technologies using the International Entrepreneur Rule.

The Secretary of DHS must also:

• continue its rulemaking process to modernize the H-1B program and enhance its integrity and usage, including by experts in AI and other critical and emerging technologies, and
• consider initiating a rulemaking to enhance the process for noncitizens, including experts in AI and other critical and emerging technologies and their spouses, dependents, and children, to adjust their status to lawful permanent resident.

So stay tuned and hold on to your digital devices. Big immigration changes are afoot.