Immigration Provisions in AI Executive Order: All Treats, No Tricks

On Halloween Eve, President Biden issued a landmark Executive Order on artificial intelligence (AI). Word has it, it’s one of the longest EOs ever written and it certainly looks that way spanning 64 pages.Officially titled "Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence," this order marks a significant step in integrating AI into various sectors, with a notable emphasis on immigration.As an immigration attorney who has spent 16 years working with immigrants in tech including AI, I’m delighted to write this piece exploring the order and shedding light on its implications for immigrants in AI and STEM fields.You can't talk about artificial intelligence (AI) without mentioning immigrants:

• 70% of full-time graduate students in fields related to AI are international students.
• Immigrants have founded or co-founded nearly two-thirds of the top AI companies in the U.S.

Understanding the Executive Order: A Detailed Analysis

The Core of the Executive Order

This comprehensive directive aims to foster a robust and secure development of AI. It specifically mandates actions in various domains, particularly focusing on modernizing immigration processes for skilled immigrants in AI and related sectors.

Immigration Objectives Outlined

The primary goals of the order include expanding opportunities for immigrants with expertise in critical areas to study, work, and stay in the U.S. It also underscores the need to modernize visa criteria, interviews, and reviews.I will note that the Executive Order directs action to be taken by the Secretary of Homeland Security, the Secretary of State, and others in specific areas so it’s not necessarily changing anything today. However, notwithstanding this, I think it can be really helpful for immigrants who study and work in these areas. Us immigration attorneys can – and should - use this Executive Order now to advocate for our clients. In fact, we have already used this in support of a case for a startup founder who works in AI. Even though exact changes are forthcoming, we can still use this today!*Like what you're reading? Click here to get more updates like this![button link="https://app.lawmatics.com/forms/share/32f35b76-b237-4c4f-8a9d-75317e0ed6f2" newwindow="yes"] Join our newsletter list [/button]

9 Key Areas of Impact on Immigration

• Visa Appointments: The order instructs the Secretary of Homeland Security to streamline visa appointment processes for individuals working in critical areas like AI, ensuring increased availability.

• J-1 Visa Revisions: It discusses changing the home residency requirement for certain J-1 visa holders, proposing updates that could be beneficial for those with critical skills.

• Domestic Visa Renewal Program: A potential game-changer, this program would expand visa stamp renewals within the U.S., including making this available for J-1 and F-1 visa holders. There is a new pilot program starting early 2024 for H-1B visa renewals stateside but this EO would expand the program to J-1 and F-1 visa holders in STEM/critical fields.

• Attracting Top Talent: The order proposes creating programs to identify and attract top AI and other critical technologies talent from universities, research institutions, and the private sector overseas.

• Policy Changes in Existing Immigration Options: It directs a review and update of policies for O-1A visas, EB-1A and EB-2 green cards (including National Interest Waiver), and the International Entrepreneur Rule. This is really exciting, and we are looking forward to some additional modernization of these options.

• H-1B Program Updates: The order continues the modernization of the H-1B program, with further rule-making expected.

• Schedule A Occupations: It suggests updating the list of Schedule A Occupations (occupations with designated labor shortages in the U.S.), potentially eliminating the need for employers to go through the PERM recruitment process for roles that clearly have a critical talent shortage here in the U.S. This list has not been updated in decades so this would be a very welcome change.

• Utilizing Discretionary Authority: The order encourages using existing legal discretionary authority to support foreign nationals with AI skills. This could include expanding parole, recapturing unused green card numbers, and more.

• Informational Resources Development: A focus on developing resources to better attract and retain AI experts is also highlighted.

Conclusion: A Step Towards Global Competitiveness

This Executive Order represents a significant stride in enhancing the U.S.'s competitiveness in AI and related fields. By aligning immigration policies with the evolving needs of the modern tech landscape, America can position itself as a leader in attracting and retaining top talent.As an immigration attorney who is deeply passionate about startups and AI, I hope this piece provides a clear understanding of the order's potential impact on immigration. For those interested in more detailed information, links to the Executive Order, fact sheets, and related articles will be provided.

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