President Biden’s Executive Order on Artificial Intelligence: Opening the Door to Immigrants With Tech Skills

The EO regarding artificial intelligence specifically instructs agency heads to attract foreign STEM talent by reviewing and revising U.S. visa eligibility rules and regulations.

By , Attorney (University of Miami School of Law)

In October 2023, the Biden administration released an Executive Order (EO) on artificial intelligence (AI), with the goal of embracing the potential of AI while also mitigating the risks it poses. The EO instructed agency heads all across the federal government to take initial actions towards integrating, promoting, and regulating the use of AI in a variety of ways—including opening up immigration pathways for STEM (science, technology, engineering, and math) professionals.

What Does Biden's AI Executive Order Say About Immigration?

One of the key components of the EO is to increase innovation and competition in AI, which means educating and hiring more STEM professionals. Significantly, the EO specifically instructs agency heads to attract foreign STEM talent by reviewing and revising visa eligibility rules and regulations. The agency heads were directed to take action within a few months of the EO's release.

What Changes Are Being Made to Immigration Policy in Response to Biden's AI Executive Order?

The EO directs U.S. federal agency heads to consider options for opening up immigration pathways for AI talent in general as well as in several specified categories:

  • Consular visa processing: streamline visa processing times, including ensuring the availability of visa appointments for workers in AI or other critical and emerging technologies.
  • Visa renewals: initiate a domestic visa renewal program for qualified applicants working in the U.S. and broaden the categories of applicants eligible for domestic visa renewal to include J-1 scholars and F-1 students in STEM.
  • J-1 exchange visitors: implement new criteria for and update the J-1 Exchange Visitor Skills List.
  • H-1B specialty technical worker program: modernize the program to enhance integrity and usage and enhance the process by which H-1B visa holders and their families can adjust their status to lawful permanent resident.
  • PERM labor certification: solicit public input on updating the "Schedule A" list (a list of occupations for which there is a recognized shortage of qualified U.S. workers available) to include AI, STEM, and any other occupations currently experiencing a shortage of workers.
  • O-1A, EB-1, EB-2, and entrepreneurs such as EB-5: clarify and modernize pathways for experts in AI and critical and emerging technologies, in particular for O-1A, EB-1, and EB-2 visa holders, and for start-up founders under the International Entrepreneur Rule.
  • General immigration policies: attract foreign talent in AI and other critical and emerging technologies by exercising discretionary authority where applicable as well as publishing informational guides on the options available to foreign STEM workers and a public report on how the immigration system was used in 2023.

What Changes Have Already Been Put In Place in Response to the AI Executive Order?

As of early February 2024, no significant changes have gone into effect. The White House provided an update on January 29, 2024 on the actions that were to be completed within a 90-day deadline, which states that the Department of Labor complied with its directive to publish a Request for Information to solicit input on updating the "Schedule A" occupations list. The White House update also claims that the Department of State completed its directive to streamline visa processing, specifically regarding interview waivers.

In early January, the Department of State (DOS) provided an update on its worldwide visa operations, which does mention interview waivers as well as other ways the DOS has streamlined its processing efficiency. Although the update discusses "using new tools" and "technology" to improve efficiency and reduce consular visa processing times in 2024, it fails to mention anything concrete.

The actual data covered by the update refer to the entirety of Fiscal Year 2023. In fact, the update specifically mentions that interview wait times remain at historically high levels, and suggests visa applicants shop around for embassies with shorter wait times. It remains unclear what specifically the DOS completed as a direct result of the EO, if anything, or whether it merely continued implementing policies already in place.

How Can the AI Order Help Me If I Want to Apply for a U.S. Visa?

If you are applying for a visa in the near future and you have experience in STEM, you might be able to use the EO to your advantage. If you have not already done so, you might wish to consider shifting your career goals towards AI or other critical and emerging technologies. Part of the EO includes a directive to create more government positions for experts in AI and other critical and emerging technologies, which means that more jobs should be available in these fields before long. Another possibility is to come to the U.S. to earn a degree in one of these fields on an F-1 student visa and later transition to a visa that will allow you to stay longer. (For more information on F-1 visas, see F-1 Student Visa to the U.S.: Do You Qualify? and Student Visa (F-1, M-1, or J-1) Application Process.)

It might also be possible to use the EO as evidence to strengthen your visa petition. A creative lawyer might be able find a way to reference the EO or otherwise incorporate it into your argument. For example, EB-2 petitioners seeking a National Interest Waiver in AI or other STEM fields might wish to include the EO as evidence that their field should be considered nationally important. (For more information on EB-2 visas and National Interest Waivers, see EB-2 Visa for Advanced Degree Professionals: Who Qualifies? and EB-2 Visa for Persons of Exceptional Ability: Who Qualifies?.)

However, whether such a strategy is feasible depends on the specifics of each visa type and each individual petition. The best way to know if you can benefit from the EO at this early stage is to contact an experienced immigration attorney.

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