New AI Executive Order Promotes Immigration of Highly Skilled Workers

On Oct. 30, President Joe Biden signed the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, an initiative designed to position the United States as a leader in balancing the risk and potential of artificial intelligence (AI) technology. This order, which is the first general guide issued by the federal government, also addresses the impact to employers of the increasing implementation of AI.

In lockstep with other AI regulations, the order outlines safety and security objectives, among others, but also highlights a critical need to promote the United States as a destination for highly skilled migrants with AI expertise. The order includes initiatives designed to ease employment-based immigration, streamline visa procedures, and assess the industry demand for skilled migrants.

In particular, the order includes the following key proposals to streamline the immigration of highly skilled workers in AI fields:

• AI Talent Attraction: The U.S. State Department, through this order, has received instructions to establish a Global AI Talent Attraction Program to match the demand for elite researchers in the field of AI.
• Expansion of J-1 Exchange Visitor Skills List: The skills list for J-1 exchange visitors will be updated to address gaps in skills in fields such as AI, as well as keep up with an evolving global labor market, consistent with the order’s encouragement of the State Department to initiate changes to the J-1 visitor exchange program to promote the attraction and retention of experts in AI and similar fields.
• Modernization of H-1B Visa Rules: Pursuant to the order, the Department of Homeland Security will simplify the H-1B renewal process as it continues its rulemaking process to modernize the H-1B program and enhance its integrity and usage. This will benefit the more than 500,000 H-1B visa holders, as well as H-1B employers.
• Streamlining Visa Renewals: Under direction of the order, J-1 research scholars and F-1 science, technology, engineering and mathematics (STEM) students will be permitted to renew their visas from within the U.S. This initiative will significantly simplify the process for such individuals, as well as reduce processing times more broadly, resulting in an immediate impact to the approximately 450,000 international students and the academic and professional institutions to which they contribute.
• Updating the Policy Manual: Experts in AI and emerging technologies will benefit from a modernized pathway described to be more inclusive of startup founders, as the order directs the Department of Homeland Security to assess current rules and regulations to simplify the process for noncitizens, including “experts in AI and other critical and emerging technologies and their spouses, dependents, and children,” to adjust status to that of a lawful permanent resident.
• Updating Schedule A: Schedule A, the list of occupations determined by the Department of Labor (DOL) to have a shortage of U.S. workers, will be updated as a result of the order’s instructions to the DOL to solicit public input on AI and other STEM labor shortages. Following the consideration of updates to the Schedule A list, occupations will be added or removed to reflect the changing job market.

While President Biden signed the order last week, the results will not be immediate. Agencies tasked with its implementation will begin to take action, with some granted up to a year to respond and others merely 30 days. The order directs the creation of new government offices and task forces, requiring each affected federal agency to appoint a chief AI officer and participate in a new White House AI Council. As with awaiting any change of this caliber, patience is required.

With respect to further developments, the hope is that this order will serve as a catalyst for positive immigration policy that may improve nonimmigrant visa processing to attract highly skilled foreign national workers and ease backlogs in immigrant visa processing as well.

For more information, please contact the Barnes & Thornburg attorney with whom you work or Sarah Hawk at 404-264-4030 or sarah.hawk@btlaw.com. This alert was co-authored by Tieranny Cutler, independent contract attorney.

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