On October 30, 2023, President Biden issued an Executive Order (EO) on Artificial Intelligence (AI), which may promote immigration policy changes to attract and retain AI talent in the U.S. The EO recognizes the importance of attracting and retaining foreign talent in AI and other critical emerging technologies to support U.S. economic growth and competitiveness.

Key takeaways:

• Establish a Program to Identify and Attract Top Talent in AI. The EO directs the U.S. State Department to establish a program to identify and attract top talent in AI and other critical and emerging technologies at research institutions, universities, and the private sector overseas. In addition, the program would inform top STEM talent of nonimmigrant and immigrant visa options and potential expedited adjudication of their visa petitions and applications.
• Streamline Consular Processing of Visa Applications. The EO directs the U.S. Department of Homeland Security to take steps to streamline the processing times of visa petitions and applications for non-citizens seeking to travel to the U.S. to work on, study, or conduct research in AI or other critical and emerging technologies. In addition, the EO seeks to facilitate the availability of sufficient visa appointments at U.S. Consulates abroad for visa applicants with expertise in AI and other critical and emerging technologies.
• Policy Changes to O-1A, EB-1, EB-2 and International Entrepreneurs Programs Related to AI. The EO directs the U.S. Department of Homeland Security to initiate policy changes to clarify and modernize immigration options for experts in AI and other critical technologies, including O-1 (extraordinary abilities visa), EB-1 (immigrant visa/green card for individuals of extraordinary abilities), EB-2 (advanced degree holders with exceptional ability and national interest), as well as the International Entrepreneur program for startup founders in AI and other critical and emerging technologies.
• J-1 Exchange Visitors. The EO directs the U.S. Department of State to establish new criteria to designate countries and skills on the Exchange Visitor Skills List as it relates to the 2-year foreign residence requirements for applicable J-1 nonimmigrants. The new criteria should consider those skills critical to the United States, including AI.
• Domestic Visa Renewal Program. The EO promotes implementing a visa renewal program in the U.S. for qualified applicants to be able to obtain renew their visa stamps in the U.S. and to allow them to work in the U.S. without unnecessary interruption. Qualified applicants would include workers highly skilled in AI and critical emerging technologies, as well as J-1 research scholars and F-1 students in science, technology, engineering, and mathematics (STEM).
• Modernization of H-1B Program. The EO also directs the U.S. Department of Homeland Security to take steps to modernize the H-1B program to facilitate adjustment of status to permanent residents by AI experts.
• Update Schedule A List of Occupations to Bypass PERM Process for AI Occupations. The EO directs the U.S. Department of Labor to update the Schedule A List of Occupations and to solicit public input to include AI, other STEM-related occupations, and other occupations for which there is an insufficient number of ready, willing, able, and qualified U.S. workers in the Schedule A List of occupations. Schedule A occupations do not require permanent labor certifications (PERM) to apply for permanent residence. Currently, physical therapists and professional nurses (Group I), as well as immigrants of exceptional abilities in the sciences or arts (Group II) are Schedule A occupations.
• Comprehensive Immigration Options Guide for AI Experts. The EO directs the U.S. State Department to develop a clear and comprehensive guide related to immigration options for experts in AI and other emerging technologies at AI.gov.

Our Immigration Practice will continue to monitor developments in this area and provide updates.

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