Executive Order on AI: Key Immigration Provisions Aimed at Attracting Top Talent

On October 30, 2023, the White House issued a broad executive order on artificial intelligence; buried within in it, Section 5 of this order includes specific immigration-related provisions aimed at attracting and retaining AI talent in the United States.

You can find the entire executive order (“The Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence”) here.

Some of the key immigration provisions include:

• Streamlining Visa Processing:
  • Within 90 days, DOS and DHS are tasked with streamlining visa petition and application processing for noncitizens seeking to work, study or conduct research in AI and other critical and emerging technologies,* including facilitating visa appointments for such applicants.
  • The executive order defines “critical and emerging technologies” to mean those technologies listed in the February 2022 Critical and Emerging Technologies List Update issued by the National Science and Technology Council (NSTC).

• J-1 Nonimmigrants and Visa Renewal:
  • Within 120 days, DOS is to consider establishing new criteria for designating countries and skills on the Exchange Visitor Skills List related to the 2-year foreign residence requirement for certain J-1 holders, as well as implementing a domestic visa renewal program to facilitate the movement of AI workers.

• Expansion of Stateside Visa Renewal Program:
  • Within 180 days, DOS is to consider expanding its domestic visa renewal program to include F-1 and academic J-1 research scholars in STEM fields.

• Modernization of Immigration Pathways:
  • Within 180 days, DHS is tasked with reviewing and initiating policy changes to modernize immigration pathways for experts in AI and critical technologies, including O-1A and EB-1A 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 Enterpreneur Rule.
  • Continue the rulemaking process to modernize the H-1B program, and consider rulemaking to enhance the process for noncitizens, including experts in AI and other critical and emerging technologies and their dependents, to adjust their status to lawful permanent resident.
  • Within 45 days, the DOL shall publish a request for information to update Schedule A to account for AI and other STEM-related occupations with shortages of qualified US workers, which may avoid the PERM process.

• Discretionary Support:
  • DOS and DHS are encouraged to use their discretionary powers to attract foreign nationals with specialized AI and critical technology skills.

• Information Resources:
  • Within 120 days, DHS, DOS and other agencies shall develop and publish informational resources to better attract and retain experts in AI and other critical and emerging technologies, including 1) a clear and comprehensive guide for such experts to understand their options for working in the US and 2) a public report with relevant data to show how such experts have used the immigration system through the end of FY 2023.

It's important to note that many of these provisions are recommendations and requests for agencies to “consider” taking the outlined actions. The actual implementation and impact of them will depend on agency decisions and rulemaking. The final outcome is uncertain, but promising for attracting AI and critical technology talent to the United States. We will be sure to announce any actionable developments that arise from the executive order.