President Biden's Far-Reaching Artificial Intelligence Executive Order Includes Some Needed Immigration Initiatives

Washington, D.C. U.S. President Joe Biden signed an extensive executive order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI) on October 30, the first action taken on AI by the U.S. federal government. The executive order includes eight main parts and establishes "new safety assessments, equity and civil rights guidance, and research on AI's impact on the labor market," White House.

Guiding Principles and Priorities

The executive order describes the Biden administration's policy "to advance and govern the development and use of AI with guiding principles and priorities," including:

1. Creating new safety and security standards for AI. AI must be safe and secure, therefore, the government will help developing Guidelines, Standards, and Best Practices for AI Safety and Security. For this the government will take into account the views of other agencies, industry, members of academia, civil society, labor unions, international allies and partners, and other relevant organizations.
2. Protecting consumer privacy. Promoting responsible innovation, competition, and collaboration will allow the United States to lead in AI and unlock the technology's potential to solve some of society's most difficult challenges.
3. Supporting workers. The responsible development and use of AI require a commitment to supporting American workers.
4. AI policies must be consistent with [the] Administration's dedication to advancing equity and civil rights.
5. The interests of Americans who increasingly use, interact with, or purchase AI and AI-enabled products in their daily lives must be protected.
6. Americans' privacy and civil liberties must be protected as AI continues advancing.
7. It is important to manage the risks from the Federal Government's own use of AI and increase its internal capacity to regulate, govern, and support responsible use of AI to deliver better results for Americans.
8. Developing guidance for federal agencies’ use and procurement of AI and speeding up the government’s hiring of workers skilled in the field. The Federal Government should lead the way to global societal, economic, and technological progress, as the United States has in previous eras of disruptive innovation and change.
9. Promoting innovation and competition by expanding grants for AI research in areas such as climate change and modernizing the criteria for highly skilled immigrant workers with key expertise to stay in the U.S.

Immigration-Related Initiatives

Immigration-related initiatives that will be considered under the executive order include:

• Attracting "the world's AI talent to our shores - not just to study, but to stay."
• Establishing new criteria for the Exchange Visitor Skills List.
• Improving visa processing times and visa appointment availability.
• Improving petition and application processing times.
• 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"
• Establishing "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 science, technology, engineering, and mathematics (STEM) talent of nonimmigrant and immigrant visa options and potential expedited adjudication of their visa petitions and applications."
• Clarifying and modernizing "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."
• Have DHS "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."
• Updating the Department of Labor "Schedule A" list of occupations (Group I and Group II), by soliciting "public input, including from industry and worker-advocate communities, identifying AI and other STEM-related occupations, as well as additional occupations across the economy."
• In general, the Secretaries of State and Homeland Security are directed to "use their discretionary authorities to support and attract foreign nationals with special skills in AI and other critical and emerging technologies seeking to work, study, or conduct research in the United States."
• The "Secretary of Homeland Security, in consultation with the Secretary of State, the Secretary of Commerce, and the Director of OSTP, shall develop and publish informational resources to better attract and retain experts in AI and other critical and emerging technologies, including...a clear and comprehensive guide for experts in AI and other critical and emerging technologies to understand their options for working in the United States, to be published in multiple relevant languages on AI.gov".

The AI.gov Website

The administration has already begun an AI-dedicated website called AI.gov. One section of the site is Bring your AI Skills to the U.S., which lists standard nonimmigrant and immigrant pathways available to most professionals, including AI professionals. This immigration page simple lists the various nonimmigrant and immigrant categories, and hyperlinks them to pre-existing USCIS content on the USCIS.gov website describing those categories.

Immigration-Related EO Extracts

Here are the relevant immigration-related extracts from the executive order. The above list of initiatives is derived from this language.

"Sec. 2. Policy and Principles.

(b) Promoting responsible innovation, competition, and collaboration will allow the United States to lead in AI and unlock the technology’s potential to solve some of society’s most difficult challenges.? This effort requires investments in AI-related education, training, development, research, and capacity, while simultaneously tackling novel intellectual property (IP) questions and other problems to protect inventors and creators.? Across the Federal Government, my Administration will support programs to provide Americans the skills they need for the age of AI and attract the world’s AI talent to our shores — not just to study, but to stay — so that the companies and technologies of the future are made in America...

(a) (a)? Within 90 days of the date of this order, to attract and retain talent in AI and other critical and emerging technologies in the United States economy, the Secretary of State and the Secretary of Homeland Security shall take appropriate steps to:

(b) Within 120 days of the date of this order, the Secretary of State shall:

(i) consider initiating a rulemaking 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;

(c) Within 180 days of this order, the Secretary of State shall:

(i) ?consider initiating a rulemaking 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); and

(d) Within 180 days of the date of this order, the Secretary of Homeland Security shall:

(i) review and initiate any policy changes the Secretary determines 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.; and

(e) Within 45 days of the date of this order, for purposes of considering updates to the "Schedule A" list of occupations (Group I and Group II), 20 C.F.R. 656.5, the Secretary of Labor shall 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.

(f) The Secretary of State and the Secretary of Homeland Security shall, consistent with applicable law and implementing regulations, use their discretionary authorities to support and attract foreign nationals with special skills in AI and other critical and emerging technologies seeking to work, study, or conduct research in the United States.

(g) Within 120 days of the date of this order, the Secretary of Homeland Security, in consultation with the Secretary of State, the Secretary of Commerce, and the Director of OSTP, shall develop and publish informational resources to better attract and retain experts in AI and other critical and emerging technologies, including:

(i) a clear and comprehensive guide for experts in AI and other critical and emerging technologies to understand their options for working in the United States, to be published in multiple relevant languages on AI.gov.

Included in the executive order are a number of initiatives that experts at the Federation of American Scientists say aim to improve immigration processes and conditions for international workers, researchers, students, and scholars who work in AI. These provisions include:?

• the expansion of the domestic revalidation of J-1 and F-1 visas
• updates to the J-1 exchange visitor skills list
• the modernization of H-1B visa rules
• the establishment of a Global AI Talent Attraction program by the Department of State

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Note: This is a blog post and should NOT be construed as a legal advice.?Changes in immigration policies and procedures are complex and may require a consultation with an experienced immigration lawyer.

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