On October 30, 2023, President Biden Signed an Executive Order (EO) focusing on AI and what the administration is designating as “other critical and emerging technologies.” The EO provides an entire section on immigration provisions. Keep in mind, there is almost nothing immigration related that changes TODAY. Most of the EO focuses on ordering the different government agencies to “consider” rule making or policy changes. One other thing to keep in mind, any changes here must be in line with the current law. The EO can seek policy, regulatory changes, or interpretation changes, but statutory changes would still require congress. This article will provide just a highlight of the provisions.

Summary of EO Provisions

• Within 90 days of the date of the order, the President has ordered the Secretary of State and the Secretary of Homeland Security to take steps to:
  • Streamline processing of visa petitions and applications for non-citizens that will be working, studying, or researching AI or other critical and emerging technologies. With this, the EO notes that this should include timely availability of visa appointments.
  • Facilitate continued visa appointment availability for applicants with expertise in AI or other critical and emerging technologies.
• Within 120 days of the order, the President has ordered the Secretary of State to:
  • Consider initiating a rulemaking to establish new criteria to designate countries and skills on the DOS Exchange Visitor Skills List as it relates to the 2 year residency requirement and those skills that are critical to the US.
  • Consider updating the 2009 Revised Exchange Visitor Skill List
  • Consider implementing a domestic visa renewal program to facilitate the ability of qualified applicants including those in AI or other critical and emerging technologies to work in the US without unnecessary interruption.
• Within 180 days of the order, the President has ordered the Secretary of State to:
  • Consider initiating a rulemaking to expand categories of nonimmigrants who qualify for the domestic visa renewal program to include J-1 research scholars and F-1 students in STEM Fields
  • Establish a program to identify and attract top talent in AI or other critical and emerging technologies at universities, research institutes, and private sector overseas to increase connections with that talent and educate them on opportunities in the US. This could include an overseas education component to inform top STEM talent of immigration options and potential expedited adjudication o their visa petitions and applications.
• Within 180 days of this order, the President has ordered the Secretary of Homeland Security to:
  • Review and initiate policy changes necessary to clarify and modernize immigration pathways for experts in AI or other critical and emerging technologies, including O-1A and EB-1, EB-2, and startup founders in AI or other critical and emerging technologies using the International Entrepreneur Rule.
  • Continue the H-1B modernization rulemaking and consider rulemaking to enhance the process for experts in AI or other critical and emerging technologies and their families to adjust their status to lawful permanent residence.
• Within 45 days of this order, the President has ordered the Secretary of Labor to:
  • Publish a request for information to solicit public input in order to update the “Schedule A” list of occupations to include AI and other STEM-related Occupations for which there is an insufficient number of ready, willing, able, or qualified US workers.

In addition to these “timed” provisions, the President has additional orders to the relevant agencies. There is an additional order for the Secretary of State and Secretary of Homeland Security to work together to implement regulations and use their discretionary authorities to support and attract foreign nationals with specials skills in AI or other critical and emerging technologies seeking to work, study, or conduct research in the US. 

Analysis

This EO does a great job of directing the relevant agencies to try to attract and retain talent in the AI and other fields to the US from abroad. The expansion on including AI guidance for EB-1A and O-1 is consistent with recent actions by DHS to broaden the provisions to allow for a focus on STEM fields. The potential expansion of Schedule A fields is a necessary step and is long overdue for an overhaul as technology has grown. It is welcoming to see the White House recognize that immigration reform is necessary for these new fields. That said, it is important to keep in mind that any of these changes cannot go beyond congressionally given authority, unless and until Congress acts, and none of these provisions are effective today. Most of the changes will require policy making or going through the regulatory process. Reddy Neumann Brown PC will continue to provide updates as they come about.  

Reddy Neumann Brown PC, located in Houston, Texas, has been serving the business community for over 25 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based immigration. We work with both employers and their employees, helping them navigate the immigration process quickly and cost-effectively.

By: Steven Brown

Steven Brown is a Partner at Reddy Neumann Brown PC where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.