Executive Order on AI: Guidance for H1B Visa, Green Card, F1, O1, J1, Others (2024)

Earlier this week, on October 30th, 2023, President Biden signed Executive Order 144110 focused on Artificial Intelligence(AI) called “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence“. While the majority of the Executive Order(EO) is focused on safeguards to innovate AI in a responsible and secure way, there are sections of it that focus on attracting AI talent and making it easier for foreign nationals with AI expertise to arrive, stay, & settle down in the US.

In this article, we will review the guidance given in the Executive Order around US Visa stampings, H1B Visa, Green Cards (Employment Based), F1 Visa holders, O-1 visa holders, J1 visa holders and other topics, including our analysis on the same for your clarity.

Background: Executive Order on AI by President Biden

The US President, Biden, signed Executive Order 14110, which mainly focused on “…governing the development and use of AI safely and responsibly…“. This is not something that came out of the blue, it has been in works for a while by “The White House Office of Science and Technology (OSTP)”. The OSTP released Blueprint for an AI Bill of Rights in October 2022. You can also check out the PDF file of Blueprint for an AI Bill of Rights for more info.

The key focus of the current EO 14110 issued by President Biden is directing many US Federal agencies to work on several initiatives related to Articficial intelligence(AI) innovation, safety, security, including their agency-specific use cases for AI. Also, it has guidance for DHS/USCIS to find ways to recruit more AI talent, retain them with better immigration policies, provide them better path for permanent residency, etc.

AI Executive Order – Guidance to DHS, Dept. of State

Below are the various topics related to visas, immigration, visa stamping, green cards, and others that are part of the Executive Order published by The WhiteHouse on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence“.

We will look at each of the topics and our analysis on the same below that doing a reality check on what it means and what is already being done in that area.

Streamline Processing Times of Visa Applications, Visa Appointments

The EO says that within 90 days from the date of the issuance of the EO, the US Department of State & Department of Homeland Security(DHS) to consider and do the following:

1. Streamline the processing times of visa applications and petitions by DHS/ USCIS for anyone with expertise in AI or emerging technologies.
2. US Department of State to give enough availability of US Visa stamping appointments at US Consulates for anyone planning to travel to the US to either work, study, or do research in AI, and other related emerging technologies. Also, provides continuous availability with enough volume for US Visa stamping appointments for any applicant with expertise in AI or any other related technologies.

Our Analysis, Reality Check – What to Expect?

1. This is not something new; USCIS/DHS already has been working on streamlining their overall processing times. USCIS may consider adding an option to expedite a petition/ application with USCIS for faster processing if there are delays. We need to wait and see what options they may provide.
2. US Consulate Appointments & processing is very much dependent on the staffing levels. It is not something that changes in 90 days; it can take time to hire consular officers. The US Dept of State is already focused on increasing US Visa Slots. We can expect them to see them given an option to raise an Emergency US Visa Appointment request, when slots are not available for anyone working in AI or critical areas. This could be similar to the National Interest Exception(NIE) letters for H1B Visa, used during the COVID-19 pandemic.

Domestica Visa Renewal for F1 Students, J1 Holders

1. The EO says within 120 days from the date of the EO, the Secretary of State to consider facilitating domestic visa renewal(US Visa stamping within the US) for anyone working in AI and critical emerging technologies in the US.
2. Also, the EO says that within 180 days from the date of the EO, the US Department of State to consider doing a rulemaking to expand the domestic visa renewal(US Visa stamping within the US) for F1 visa students in STEM fields and J-1 research scholars.

Our Analysis, Reality Check – What to Expect?

1. Firstly, the domestic visa renewals for someone working in the US on H or L Visas have been discussed for a very long time, and it is currently with the Office of Management and Budget(OMB) for review. There is nothing new to expect; There are plans already in place to have it ready by early 2024. You can read more at: US Visa Stamping with USA News updates.
2. The initial plan is to offer domestic visa renewal for H and L visa applicants, now with the EO, they are asking for rulemaking to add F1 and J visa holders. In fact, this was the original plan of DHS as well, which they said earlier this year. This EO is going to help accelerate it. But, it can take anywhere from 6 months to a year to have it in available.

Continue Rulemaking to Modernize H1B Program

1. The EO says, within 180 days from the date of the issance of the EO, DHS to continue its rulemaking process to modernize H1B Visa Program, including experts in AI and other critical technologies.

Our Analysis, Reality Check – What to expect?

1. There is nothing new here as we already have a proposed rule on H1B Program Modernization in the Notice of Proposed Rulemaking(NPRM). This EO is not saying anything new, but to continue it.

Changes to Green Card – EB1, EB2, Adjustment of Status, O1A

1. Within 180 days from the date of EO, review and modernize immigration pathways for experts in AI and emerging technologies to get Green Cards in EB1, EB2, and O1A categories and AI startup founders or anyone leveraging the International Entrepreneur Rule for AI-related startups.
2. Also, consider rulemaking to improve the process for anyone in AI and other critical technologies, including their spouses, dependents, and children, to adjust their status to Green Card.

Our Analysis, Reality Check – What to expect?

1. This is a very broad statement saying to modernize the pathways for Green Card. Currently, the International Entrepreneur Rule is where entrepreneurs can apply for parole(official permission given by DHS to enter and remain temporarily in the US) and work in the US. We do not know what they mean. Maybe DHS can offer parole programs, something similar to the current International Entrepreneur Rule by USCIS for EB1, EB2, O1A, and others working in AI field. Also, they could do something like updating of STEM Designated Degrees back in 2022; We do not know what to expect here. We need to wait and see.
2. This is a slightly broad statement saying to enhance the process to adjust to a Green Card for anyone with AI skills or critical areas. This is very subjective and we need to see what they come up with. We may or may not see anything significant here within the next 6 months.

Consider Updates to Schedule A List

1. Within 45 days from the date of the EO, the Department of Labor to publish a request for information(RFI) to get public input from the industry and worker advocate committees to find out if AI and other STEM-related occupations have a shortage of workers. Consider updating the Schedule A-List based on the inputs received.

Our Analysis, Reality Check – What to expect?

1. In general, if an occupation gets added to the Schedule A list (like physical therapists & nurses), then there will not be any need to go through the Labor Certification Process for Green Card. It will save time, and applicants can directly apply for I-140 with USCIS. They are suggesting to add roles with expertise in AI or in STEM-related areas to be added to this Schedule A List. This can take time, and we may or may not see something quick as it requires a lot of background work and inputs.

Rulemaking for J-1 Residency Requirements, Update List

1. Within 120 days of the date of the EO, the Secretary of State to consider rulemaking to establish a new criteria for the J-1 Program, the list of countries, Skills list, etc. Also, review at the 2 year residency requirements of J-1 program.
2. Consider Updating the 2009 Revised Exchange Visitor Skills List.

Our Analysis, Reality Check – What to expect?

1. The J-1 program is used by research scholars to exchange skills between countries. Usually, after the J1 program, the researchers must return to their home country and work for 2 years. Currently, there is a full list of countries and what skills are allowed for training and exchange. The EO suggests reviewing this list of countries and the 2-year requirement related to going back. This can be a big one, as it will help J-1 researchers in AI overcome the requirement and stay back as needed. We need to see as it this can take time.
2. The 2009 Revised Exchange Visitor Skill list is pretty dated from year 2009 and the EO says to review and update it fully with a list of countries and skills based on current need for the US.

Attract Foreign Nationals with Special Skills in AI

1. Within 45 days from the date of the EO, DHS, and Dept of State by working with the Secretary of Commerce and Director of OSTP, shall come up with options to better attract and retain experts in AI & emerging tech. Also, provide a comprehensive guide for experts in AI & other emerging tech to understand options to work in AI.

Our Analysis, Reality Check – What to expect?

1. This is also a pretty broad initiative and these are very generic statements. It is very hard to say, if something will really happen in the next 45 days. This can take time and years to implement. We need to wait and see.

Next Steps for the Executive Order on AI – Immigration Changes

As per the EO, there are some defined dates and timelines given for each of the items above. We can expect to see some actions by DHS/ USCIS and US Dept of State as listed below in the next 45 days to 180 days.

• We could see some new policy documents updating policies or new ones.
• We could see some new changes to the USCIS policy manual that is used for adjudication.
• We may see some new Regulations that would be available for public comments.

In terms of real impact, nothing will happen soon, many of them would take time to implement.

What do you think about the proposed actions in the EO? Share your thoughts in comments section below.