A new executive order on artificial intelligence could help immigrants and temporary visa holders with AI backgrounds. The measure instructs government agencies to implement the order’s aspirational language. The possibility the proposed H-1B rule could make it harder to recruit and retain foreign-born AI experts looms over the executive order.
The AI Executive Order
On October 30, 2023, President Biden issued an executive order on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence.” The order recognizes the significant role of immigrants, international students and high-skilled temporary visa holders in AI.
“Immigrants have founded or cofounded nearly two-thirds (65% or 28 of 43) of the top AI companies in the United States, and 70% of full-time graduate students in fields related to artificial intelligence are international students,” according to a National Foundation for American Policy study. “Seventy-seven percent of the leading U.S.-based AI companies were founded or cofounded by immigrants or the children of immigrants. Forty-two percent (18 of 43) of the top U.S.-based AI companies had a founder who came to America as an international student.” (I authored the study.)
“Within 90 days of the date of this order, to attract and retain talent in AI and other critical and emerging technologies in the United States economy, the Secretary of State and the Secretary of Homeland Security shall take appropriate steps to “streamline processing times of visa petitions and applications, including by ensuring timely availability of visa appointments, for noncitizens who seek to travel to the United States to work on, study, or conduct research in AI or other critical and emerging technologies.”
“The fast timelines being imposed on USCIS, State and the Department of Labor make it clear that the president wants action quickly,” said Greg Siskind of Siskind Susser.
The executive order asks the State Department to consider adding J-1 research scholars and F-1 students in science, technology, engineering and math (STEM) to the upcoming domestic visa renewal program. The State Department may also initiate rulemaking “to establish new criteria to designate countries and skills on the Department of State’s Exchange Visitor Skills List as it relates to the 2-year foreign residence requirement for certain J-1 nonimmigrants, including those skills that are critical to the United States” and to “consider publishing updates to the 2009 Revised Exchange Visitor Skills List.”
An Office of Management Budget memo provides additional details for agencies to implement the executive order. The order tasks federal agencies with creating reports, guides and resources on AI and immigration to the United States.
Guidance On EB-1 And EB-2, Schedule A
Expanding the occupations lists on Schedule A and the directive on EB-1 (employment-based, first preference) and EB-2 (employment-based, second preference) are likely the most positive elements in the executive order, according to Lynden Melmed of Berry Appleman & Leiden, a former chief counsel of USCIS.
The executive order asks the Department of Homeland Security (and USCIS) to “clarify and modernize immigration pathways for experts in AI and other critical and emerging technologies, 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.”
Melmed believes the guidance could make it easier to establish grounds for a National Interest Waiver, helping more outstanding individuals to qualify and self-petition.
The executive order assigns the Secretary of Labor to consider expanding the Schedule A list of occupations after soliciting public input and “identifying AI and other STEM-related occupations, as well as additional occupations across the economy, for which there is an insufficient number of ready, willing, able, and qualified United States workers.”
If DOL lists a foreign national’s occupation on Schedule A, their employer can avoid labor certification and lengthy PERM processing. However, the Department of Labor has not updated the list in decades.
“The case for using Schedule A is stronger when DOL’s processing times are long,” said Melmed. “Today, companies face a 6-8 month process to obtain a Prevailing Wage Determination, and then the request for a labor certification can take just as long. A failure to designate an occupation for Schedule A often means a year-long delay and significant operational costs for the government and the private sector.
“When we look at the fields of artificial intelligence and machine learning, the U.S. can’t afford self-imposed delays in attracting and retaining foreign workers with those specialized skills. Leveraging Schedule A for those occupations where the executive branch has already determined a shortage exists is an easy way to advance U.S. interests.”
Melmed thinks DOL should add several occupations to Schedule A, including software developers, computer programmers, computer and information systems managers, computer and information research scientists, operations research analysts, data scientists, quantitative analysts, hardware engineers and silicon engineers.
Adjustment Of Status
The executive order asks DHS to “consider initiating a rulemaking to enhance the process for noncitizens, including experts in AI and other critical and emerging technologies and their spouses, dependents, and children, to adjust their status to lawful permanent resident.” This section likely refers to upcoming rulemaking on adjustment of status.
Proposed H-1B Rule: A Cloud Hanging Over The AI Executive Order
The executive order references the proposed H-1B rule that likely would make it more difficult for employers to attract and retain AI and related foreign-born talent.
“The Biden administration’s proposed rule takes crucial language on degrees from a restrictive interim final rule the Trump administration published in 2020,” according to a recent Forbes article. “Courts later blocked the Trump rule. Attorneys and companies warned at the time the rule’s language would stop many talented foreign-born professionals from working in America.”
The Biden H-1B rule uses the phrase “directly related specific specialty” to narrow the positions considered specialty occupations.
“There is an inconsistency between the proposed rule and AI executive order,” according to Kevin Miner of Fragomen. “Unfortunately, there are several aspects of the proposed H-1B regulation that—if implemented as proposed—will have the exact opposite effect and limits the ability of highly skilled temporary visa holders to stay and work in the United States.
“The language in the proposed regulation could be used by adjudicators at USCIS to deny H-1B petitions where the degree field doesn’t precisely match what the adjudicator believes would be required to perform the role, and with fast-evolving jobs like those in AI, this can change quickly. USCIS would be far better off focusing on the entire course of study—including specific coursework completed—rather than the degree field.”
Miner notes the rule’s restriction would ultimately affect immigrants as well since most employment-based immigrants begin working in the United States with H-1B status. “The reality is that a lot of technology roles, including those in AI, are filled by people who have degrees that are not in something traditional like computer science,” said Miner. “A whole variety of engineering disciplines, mathematics, statistics, operations research, physics, and a host of other fields have the kinds of technology content that is required by employers seeking to fill these roles.” Today, USCIS often looks at the actual coursework rather than the degree field, which would likely change if the proposed rule takes effect as currently drafted.
A More Optimistic Take On AI
The non-immigration parts of the Biden administration’s AI executive order have been criticized as alarmist and potentially leading to overregulation that will stifle innovation.
The Conservative Futurist: How To Create The Sci-Fi World We Were Promised by James Pethokoukis adopts a more optimistic take on AI and other technologies. Pethokoukis writes in his book that the absence of heavy regulation in the 1990s allowed the Internet and accompanying innovation to flourish. “That 1990s lesson should strongly inform how government regulations artificial intelligence/machine learning, including generative AI, given the tremendous potential benefits to humanity.”
Pethokoukis argues if America wants to lead and succeed in the industries and technologies of the future, it needs a more open immigration policy. He cites NFAP research on immigrant entrepreneurs in AI and billion-dollar startups to highlight the benefits of immigration. “America needs all the smart people it can get,” he writes. “On that, economists seem unanimous.” He also favors more open trade, which has veered into protectionism during the Trump and Biden administrations.
“We currently stand at a moment when great progress is possible thanks to a host of emerging technologies,” writes Pethokoukis. The Biden executive order recommends America attract and retain talent in AI so that the most significant technologies in the 21st century can be produced in the United States.