On October 30, 2023, President Biden issued an Executive Order (EO) on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” The order announces a set of guiding policies and principles to advance and govern artificial intelligence (AI), such as promoting innovation and competition or protecting users’ privacy or leading the globe in technological progress.
The order’s aspirational language is paired with directives to specific agencies to review and revise their policies to align with the objectives of the Executive Order. Notably, the EO directs immigration agencies to modernize and streamline visa criteria, interviews, and reviews in order to expand the ability of immigrants and nonimmigrants with AI expertise to study, stay, and work in the United States. Immigration agencies are instructed to implement, or at least consider implementing, certain changes affecting the O-1A, EB-1, EB-2, J-1, and F-1 programs, as well as to consider AI workers in developing the H-1B program, adjustment of status process, and domestic visa renewal program.
These specific directives to each agency are as follows:
The State Department (DOS) and Department of Homeland Security (DHS) shall 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.
Within 90 days, DOS and DHS shall streamline processing times for visa petitions and applications for foreign nationals seeking to work on, study, or conduct research in AI or other critical and emerging technologies, including by ensuring that visa appointments are available in sufficient volume and in a timely manner.
Within 120 days, DOS shall consider making changes to potentially reduce the number of J-1 exchange visitors in AI who are subject to the 2-year foreign residence requirement, namely by establishing new criteria for designating countries and skills on the Exchange Visitor Skills List.
Within 180 days, DOS shall consider expanding the domestic visa renewal program to include academic J-1 research scholars and F-1 students in science, technology, engineering, and mathematics (STEM).
Within 180 days, DOS shall establish a program to identify and attract talent in AI and other critical and emerging technologies from universities, research institutions, and the private sector overseas, including to inform STEM talent overseas of visa options and potentially to expedite adjudication of their visa petitions and applications.
Within 180 days, DHS shall initiate policy changes to clarify and modernize immigration pathways for experts in AI and other critical and emerging technologies, including through the H-1B, O-1A, EB-1, EB-2, and International Entrepreneur Parole programs.
Within 180 days, DHS shall develop new rules to enhance the adjustment of status process for AI experts and their spouses, dependents, and children.
Within 120 days, DHS shall publish a guide on AI.gov about AI experts’ options for working in the U.S., and shall publish a report with data on immigration applications, petitions, approvals, and other indicators to show how AI experts used the immigration system through the end of Fiscal Year 2023.
Within 45 days, the Department of Labor (DOL) shall solicit input from industry and worker-advocate communities to identify AI and other STEM-related occupations that lack a sufficient number of ready, willing, able, and qualified U.S. workers, for purposes of updating the list of “Schedule A” occupations (occupations with an expedited green card process).
The above directives will likely take several months, if not more, to implement, particularly where they call on an agency to initiate a rulemaking. We will continue to post updates as DOL, DOS, and DHS take action in accordance with the executive order.
Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how the executive order may affect your specific circumstances, please contact your team at D&S.