New Executive Order on Artificial Intelligence Asks Federal Agencies for Initiatives to Attract and Retain Foreign AI Talent

President Biden has issued a wide-ranging Executive Order to establish guidelines for artificial intelligence (AI) security, innovation, and advancement – including several immigration provisions related to the attraction and retention of foreign talent in AI. The order directs the State Department to streamline visa appointment processing times and availability for foreign nationals who seek to work on, study, or conduct research in AI or in other critical and emerging technologies. The order also instructs the State Department and the Department of Homeland Security to undertake reviews of programs and processes that affect foreign AI talent, with a goal towards easing and prioritizing their immigration processes. In most instances, agencies are not required to make substantive changes to existing immigration policies and procedures, so any implementation of the order’s immigration provisions is likely to depend on agency resources and initiative.

The issue

President Joseph R. Biden Jr. has issued a comprehensive Executive Order (EO) instructing federal agencies to engage in numerous initiatives related to artificial intelligence (AI) security, innovation, and advancement, including an extensive set of directives for immigration agencies to consider and, in some cases, develop new ways to attract and retain foreign workers in the AI field. The EO’s immigration-related provisions address nonimmigrant and permanent residence policies and relate to immigration processes that occur both overseas and in the United States.

Nonimmigrant consular processing and visa petitions

To comply with the EO, the State Department (DOS) and the Department of Homeland Security (DHS) must take appropriate steps within 90 days to:

• Streamline the processing times of visa petitions and applications – including by ensuring the timely availability of visa appointments – for foreign nationals who seek to travel to the United States to work on, study, or conduct research in AI or other critical and emerging technologies; and
• Facilitate continued availability of visa appointments in sufficient volume for applicants with expertise in AI or other critical and emerging technologies.

The State Department and DHS also have a general mandate in the EO to use their discretionary authorities to support and attract foreign nationals with special skills in these areas who are seeking to work, study, or conduct research in the United States.

AI and the J-1 exchange program

Within the next four months, DOS is ordered to consider changes to the J-1 exchange visitor program that could enhance opportunities for AI talent. These include reviewing the J-1 Exchange Visitor Skills list to potentially reduce the number of J-1 nonimmigrants in AI and related fields who are required to return to their home country for two years after completing their J-1 program in the United States. The EO urges DOS to consider new regulations governing the two-year home residency requirement for J-1 exchange visitors, including updates to the 2009 list of countries and skills subject to the home-residency requirement.

Employment-based immigration policy review

DHS is ordered to review and initiate any policy changes the agency determines necessary and appropriate to clarify and modernize existing immigration pathways for experts in AI and other critical and emerging technologies, including the EB-1, EB-2 and O-1 categories, and the International Entrepreneur parole program. This initiative could result in guidance similar to the agency’s STEM talent program announced in 2022.

The EO also asks DOS to consider AI workers in the United States in the development of its upcoming domestic visa renewal program, and consider whether the program could eventually be expanded to F-1 students and J-1 exchange visitors. The DHS H-1B program modernization proposed rule and a planned regulation to streamline the adjustment of status process are also suggested as areas in which DHS should consider the impact on AI talent during policy development.

Public engagement

President Biden is also directing several agencies to engage the public on matters related to AI, the U.S. labor market, and foreign workers in the AI field.

The Department of Labor (DOL) is required to publish a request for information (RFI) to solicit public input for the purposes of considering updates to the “Schedule A” list of occupations, a category that benefits from expedited treatment in the green card process. The EO directs DOL to ask industry and worker-advocate communities to identify AI and other STEM-related occupations, as well as any other occupations, in which there are an insufficient number of ready, willing, able, and qualified U.S. workers.

DHS, in consultation with DOS, the Department of Commerce, and the Office of Science and Technology Policy (OSTP), is required to develop and publish informational resources to help experts in AI and other critical and emerging technologies understand their options for working in the United States. DHS is also charged with publishing data on immigration petitions and applications filed by or on behalf of experts in AI and other critical and emerging technologies through the end of Fiscal Year 2023.

Finally, the State Department is required to establish a program to identify and attract top talent in AI and other critical and emerging technologies at universities, research institutions, and the private sector overseas, and educate these individuals on opportunities and resources for research and employment in the United States.

What the EO means for employers and foreign nationals

While the new EO emphasizes the Biden Administration’s interest in promoting AI innovation through recruitment of foreign talent, immediate changes are unlikely, though some process and policy developments may emerge in the future as a result of the required reviews. Some changes, like the directive for increased visa appointment availability at U.S. consulates, are likely to depend on agency staffing and resources. Changes that require a regulation would generally be implemented through notice and comment rulemaking, which can take several months or more.