Overview of Immigration-Related Provisions of Biden’s AI Executive Order
On October 30, 2023, the Biden Administration issued a broadly worded Executive Order (EO) to promote “the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” Section 5.1 of the EO specifically addresses the promotion of innovation and competition through changes to US immigration policy. While most of the directives found in the immigration-related provisions of the EO are general and aspirational, or rehash previous policy pronouncements, a few portions stand out, and may signal substantive changes that could benefit employment of non-citizen workers in Artificial Intelligence (AI), and other high-skilled occupations.
Adding AI and other Shortage Occupations to Schedule A Designation
Most importantly, the EO directs the Department of Labor (DOL) to consider expanding the “Schedule A” list of occupations to include “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.” Employers sponsoring a foreign worker in Schedule A-designated occupations are not required to go through the PERM labor certification process with the DOL before filing a green card petition with the United States Citizenship and Immigration Services (USCIS). The PERM application is a preliminary labor market test whereby the employer must demonstrate the unavailability of qualified US workers through documented recruitment activities. Due to the exceptionally long processing delays for PERM applications, bypassing this step with a Schedule A designation, could reduce the overall processing timeline by almost two years, thereby offering employers a more effective means of attracting highly qualified global talent. Skipping this step would also save the employer potentially thousands of dollars in advertising costs and attorneys fees.
Increased Visa Appointment Availability, and Expansion of Stateside Visa Renewals for F-1s, L-1s and Other Categories
A significant impediment to employing non-citizen workers with critical skills has been the difficulty in securing visas at US embassies and consulates abroad. This problem has worsened over the last few years due to shortages of government resources, and the lasting repercussions of processing backlogs that have built up during the COVID pandemic. The EO directs the Department of State (DOS) 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 EO further directs the DOS to “facilitate continued availability of visa appointments in sufficient volume for applicants with expertise in AI or other critical and emerging technologies.” Although these mandates are very broad, the EO provides one specific directive relating to visa renewals that is encouraging: it requires the Department of State to consider new rules to expand the availability of domestic visa renewals for F-1 students in STEM fields, J-1 research scholars and temporary workers with AI and other critical skills.
As reported in our earlier alert, the Department of State discontinued so-called stateside visa renewals shortly after September 11, 2001, and has only recently introduced a pilot program that would resume this program for H-1Bs. The limited availability of visa appointment and visa processing delays at consulates abroad have caused major disruptions to non-citizen workers in many classifications, in addition to H-1B. These workers often find themselves unable to travel internationally, or when they do travel, are stuck outside the US for several weeks, as they wait for their visa applications to be processed. A domestic renewal option would provide more predictability and stability to international travel, thereby reducing some of the key limitations of employing non-citizen workers with critical skills in the US.
Removal of Two-Year Home Residency Requirement for Certain J-1 Exchange Visitors
The J-1 exchange visitor program provides a means for non-citizen workers to come to the US for certain temporary employment-authorized purposes. The program offers many different categories ranging from au pairs and camp counselors, to post-doctoral research scholars. The J-1 is often used by technology companies for short-term training or internship programs, and to allow ‘specialists’ to come to the US to engage in the exchange of advanced technical knowledge.
An important limitation of the J-1 program is the so-called two-year home residency requirement, which mandates that certain J-1 participants return to their home country for at least two years after their J-1 program finishes in order to be eligible to apply for US permanent residency, H-1B, or L-1 temporary work-authorized classifications. In most cases, the return residency requirement is based on the limitations found in the J-1 Exchange Visitor Skills List. Whether a person is subject to these limitations depends on the professional or academic field of the J-1 program, in addition to the person’s nationality. People from certain countries – typically developing countries – are disproportionately impacted by the Skills List limitations. For example, a person coming to the US from India for a J-1 training program in the field of software engineering would be subject to the return residency requirement, whereas a person coming for J-1 training in the same field, who is a citizen of Canada, would not.
The EO’s directive to consider revising the J-1 Skills List is inline with the Biden’s Administration’s stated goal of encouraging more non-citizens with ‘critical skills’ to come to the US. It is hoped that loosening some of the constraints on the J-1 program will further encourage the program’s use, and facilitate the exchange of critical knowledge in AI and other advanced areas of technology.
Although the immigration-related provisions of the Biden Administration’s recent EO are encouraging, it remains to be seen what, if any, impact the EO will actually have on US immigration policy. It should be emphasized that the directives of the EO do not require the Department of Homeland Security, Department of State or other government agencies to take any specific action that will result in tangible benefits to foreign workers or their employers. The directives are merely instructions to these agencies to ‘consider’ making changes to existing policies. Even where a government agency does decide to move forward with revising policies, or creating new policy, in most cases, any substantive change must go through the administrative rulemaking process. This process most often takes several months, and sometimes several years.