On October 30, 2023, President Biden issued an Executive Order (EO) that is intended to set standards for the safe and secure development of artificial intelligence (AI) in the U.S. This wide-ranging EO on the “safe, secure, and trustworthy development and use of artificial intelligence,” acknowledges that AI is around us, but calls for its governance on the development and use in a safe and responsible manner. In addition to setting new standards for AI safety, security, and new privacy provisions, the EO instructs federal agencies to engage in numerous initiatives to attract and retain foreign workers in the AI field. Some of the key immigration-related provisions include: 

• Modernize Immigration Pathways, Including the H-1B Program: Within 180 days, the Secretary of Homeland Security should review and initiate any policy changes to immigration pathways for experts in AI, including O-1A and EB-1 noncitizens of extraordinary ability; EB-2 advanced-degree holders and noncitizens of exceptional ability; and startup founders in AI and other critical and emerging technologies using the International Entrepreneur Rule. Moreover, the Secretary is directed to continue modernizing the H-1B program and consider rulemaking to improve the process for experts in AI and other crucial emergency technologies (along with their qualifying dependents) to adjust their status to lawful permanent residents). 

• Global Talent Attraction Program: Within 180 days, the Secretary of State is directed to establish a program to identify and attract top AI talent and other critical technologies globally, connecting them with opportunities in the U.S. This includes overseas educational components to inform top STEM talent of visa options and potential expedited adjudication of their visa petitions. 

• Updates to “Schedule A” List of Occupations: Within 45 days, the Secretary of Labor shall seek public input to identify AI and STEM-related occupations that lack sufficient U.S. workers for updates to the “Schedule A” list of occupations, which is a category that benefits from expedited treatment in the green card process. 

• Streamline visa processing: Within 90 days, the Secretary of State and Department of Homeland Security (DHS) is directed to streamline visa appointment availability for foreign nationals traveling to the U.S. to work on, study, or conduct research in AI or other critical and emerging fields. 

• Implement and Expand Domestic Visa Renewal Program: Within 120 days, the Secretary of State should consider AI workers in the U.S. in the development of its upcoming domestic visa renewal program. Furthermore, within 180 days, it should consider expanding this visa renewal program to include academic J-1 research scholars and F-1 students in Science, Engineering, Technology, and Mathematics (“STEM”) fields. 

• Consider updating J-1 Exchange Visitor Skills List:  Within 120 days, the Secretary of State should consider establishing new criteria to designate countries and skills critical to the U.S. on the Exchange Visitor Skills List, as it relates to the 2-year foreign residence requirement for J-1 nonimmigrants. 

Takeaway:  
 

While the new EO appears to be intended to make it easier for foreign nationals in AI and critical technologies to come to the U.S., work, and contribute to the country’s technological advancements, immediate changes may be unlikely. Regulatory changes generally are implemented through notice and comment rulemaking, which can take several months, if not longer. There may, however, be process and policy developments in the interim, which we will provide an update on, as applicable, as they unfold.