Executive Order: A Real Shift in Immigration and AI, or Just AI Creation?

Seyfarth Synopsis: On October 30, 2023, President Biden issued an Executive Order that sets a new course for the safe, secure, and trustworthy development and use of Artificial Intelligence (AI). Interestingly, this order is not just about technology- it brings with it a host of implications, including a significant move marking a new direction in immigration policy, especially for U.S. employers. To accomplish the Executive Order’s stated goal of ensuring that America “leads the way in seizing the promise and managing the risks” of AI, the order seeks to pave the way to attract AI talent into the US, as both students and immigrants. The significant immigration policy changes and rulemaking initiated by the order marks a new direction in immigration policy. This blog post delves into these implications, offering insights into the potential of this Executive Order (or “EO”) to reshape the immigration landscape to support economic growth and U.S. competitiveness as it relates to those working in the field of “AI and other critical and emerging technologies.”

Immigration Policy Innovations

To cultivate talent in AI and emerging technologies, the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence highlights the significance of immigration policy in attracting and retaining top talent. With that in mind, the Department of Homeland Security (“DHS”) and the Department of Labor (“DOL”) are directed to review and identify pathways within the current U.S. immigration system to advance the policies outlined in the Executive Order.

Clarifying and Modernizing Pathways: The DHS Secretary is set to review and potentially modify policies related to how temporary visa categories like the O-1A for individuals with extraordinary ability or  outstanding researchers and permanent visa categories like the EB-1 for individuals with extraordinary ability or the EB-2 for individuals with advanced degrees may be leveraged to encourage talent in these fields.  DHS has posted general information through a Fact Sheet that discusses its consideration of immigration policy changes, but what such changes could look like and when they may be implemented through policy or regulation is still in theory. Efforts could include broadening the criteria for these visas and making the process more streamlined for specialists in AI and emerging technologies to qualify in these visa categories.

Schedule A Occupations Expansion: A significant proposition is expansion of the DOL "Schedule A" list of occupations. Schedule A is a list of occupations where the DOL has in essence predetermined a shortage exists in the labor market. For occupations on this list, U.S. employers may bypass the test of the labor market that is currently required to sponsor foreign workers for green cards. It has been more than three decades since the Schedule A Group I list was updated. The program is one of many that is ripe for review and modernization. It is unknown if DOL has a system or process for how occupations are identified for Schedule A. Historically the list was limited to roles like nurses and physical therapists, with this new directive, an updated list is within the realm of possibility. Alongside the unknowns are great possibilities for implementing a more nuanced approach and systematic protocol for regularly reviewing and assessing the approved occupations on Schedule A to better meet the demands and needs of the labor market, one that is in line with a quickly changing economic and global landscape.   

Modernizing the H-1B Program:  The proposed amendments to the H-1B visa regulations may redefine "specialty occupation" criteria. Given AI's interdisciplinary nature, it is crucial that this definition is flexible enough to accommodate AI specialists whose expertise crosses traditional academic boundaries. The DHS Fact Sheet referencing the USCIS’ proposed rule to modernize the H-1B program published on October 20, 2023 notes that this proposed rule is “consistent” with the Executive Order. A close review of the proposed rule, however, reveals unclear elements, particularly in defining specialty occupation and educational criteria. Timing of the Executive Order is opportune as stakeholders can comment on the proposal until December 19, 2023, to ensure it meets business needs and aligns with the Executive Order. We encourage our readers to consider commenting or working with a group that is doing so.[1]

Benefits for Noncitizen Students: The Executive Order also proposes expanding visa renewal programs for F-1 STEM students and J-1 research scholars to simplify the process and eliminate the need for costly and disruptive international travel to renew visas at U.S. consulates outside the U.S. However, adjustments to the J-1 visa’s two-year foreign residence requirement[2] could impose additional challenges, potentially requiring certain scholars to return to their home countries for two years. This could impact long-term staffing and planning for organizations that rely on J-1 visa holders.

Timeline Summary

The Executive Order provides an ambitious timeline for the respective federal agencies to take action in support of the immigration related priorities and provisions:

Within 45 Days (December 14, 2023): The Secretary of Labor is mandated to publish a request for information (RFI). This RFI aims to gather public input to identify specific AI and emerging technologies-related occupations, and other sectors, lacking sufficient U.S. workers.

Within 90 Days (January 28, 2024): The Secretary of State and the Secretary of Homeland Security are required to take steps to streamline visa processing times. This includes ensuring timely visa appointments for noncitizens working or researching in AI or related technologies. They must also ensure a sufficient volume of visa appointments for individuals with expertise in these critical areas.

Within 120 Days (February 27, 2024): The Secretary of State should consider new criteria for designating skills and countries on the Exchange Visitor Skills List, particularly focusing on skills critical to the U.S. This includes consideration for publishing updates to the 2009 Revised Exchange Visitor Skills List and implementing a domestic visa renewal program under 22 C.F.R. 41.111(b). This aims to assist qualified applicants, especially those skilled in AI and emerging technologies, in continuing their work in the U.S. without interruption.

Within 180 Days (April 27, 2024): The Secretary of State is expected to propose expanding nonimmigrant categories eligible for domestic visa renewal, including J-1 research scholars and F-1 STEM students. A program should be established to identify and attract global talent in AI and other technologies, with a focus on informing them about U.S. research and employment opportunities, including visa options and potential expedited visa processing.

Within 180 Days (April 27, 2024): The Secretary of Homeland Security is tasked with reviewing and initiating necessary policy changes to clarify and modernize immigration pathways. This includes pathways for experts in AI and emerging technologies under various visa categories like O-1A, EB-1, and EB-2.

The Secretary must continue the process of modernizing the H-1B program and consider rulemaking to enhance the adjustment process for lawful permanent residency for noncitizens and their families in these technology sectors.

More broadly our Seyfarth partners drafted a fantastic overview of the EO, discussing issues that were identified as being of particular interest to employers President Biden Signs Executive Order Setting Forth Broad Directives for Artificial Intelligence Regulation and Enforcement.  The overview suggests that the EO outlines a “comprehensive government wide approach,” emphasizing not just national security and public health but also broad government involvement in AI development and usage. The overview also discusses calls for action across multiple departments and agencies, balancing the benefits of AI with associated risks. The employer issues were identified as:

1. Civil Rights and AI Enforcement Coordination
2. Focus on Labor and Worker Protections
3. Guidance for Federal Contractors on AI in Hiring
4. Federal Government’s Approach to AI Risk
5. NIST's Role and Security Testing of AI

Potential Challenges and Aspirations

While these policy changes offer promise, many are still in the proposal stage and require rulemaking to be enacted. The Executive Order largely sets a direction for potential changes, with actual implementation depending on future regulatory actions. Additionally, in the context of immigration, the effectiveness of these changes in attracting AI and emerging technologies talent may be limited by broader systemic issues like visa backlogs and caps, especially for applicants from over-represented countries who are forced to wait patiently “in a legal line” for years to obtain residency.

A Step Forward with Room for Legislative Action

The Executive Order on AI signifies a proactive step towards enhancing the U.S.'s role in AI development and attracting global talent. However, its full impact will depend on the implementation of these proposals and the broader context of U.S. immigration policy. While these changes are promising, meaningful reform in this area ultimately requires action on the part of the administration and Congress, highlighting the need for a comprehensive approach to immigration reform to truly harness the potential of global AI expertise.

 

[1] Our Government Relations and Policy Group, led by former USCIS Director Leon Rodriguez can assist with comment drafting.

[2] The J-1 visa program, often used by research scholars, has a condition known as the "two-year home country physical presence requirement." Essentially, it mandates that certain J-1 visa holders must return to their home country for at least two years after their visa expires. This requirement is designed to ensure that the skills and experience gained in the U.S. are utilized in their home country.