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Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.
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Dear Sophie,
I saw President Biden signed an artificial intelligence executive order this week. Is the administration making more visas and green cards available to people in AI?
— Inquisitive Investor
Dear Inquisitive,
I’m super excited that President Biden’s latest executive order, which he signed on Monday, seeks to create “a coordinated, federal government-wide approach” to develop and use AI and includes efforts to “attract the world’s AI talent to our shores — not just to study, but to stay — so that the companies and technologies of the future are made in America.”
The most direct way to do that would be to raise the number of H-1B specialty occupation visas and employment-based green cards that are available each year to individuals studying and working in the AI field. However, raising the caps on visas and green cards can only be done through congressional action. Given the gridlock in Congress, that’s become far less likely, so the administration is improving the immigration process through executive action to meet the country’s national security goals and to maintain global leadership in artificial intelligence.
There are many wonderful ways that the “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” aims to improve immigration for top AI talent, including making O-1As, International Entrepreneur Parole, and self-petitioned green cards easier for founders; expanding stateside visa renewals from H & L to also include O, F and J visas; expanding the authority for visa interview waivers; streamlining adjudication for AI talent; limiting the J-1 212(e); expanding Schedule A; and creating new recruiting programs to attract the world’s best and brightest.
Let’s dive in!
Improved EB-1A, EB-2 NIW, O-1A and IER for founders and more
The executive order requires the U.S. Department of Homeland Security (DHS) to initiate policy changes that would “clarify and modernize” the path to visas and green cards for AI talent and AI startup founders, including the O-1A extraordinary ability visa, the EB-1 category green card and the EB-2 category green card for individuals with an advanced degree or exceptional ability, including national interest waivers.
The executive order also requires DHS to improve the International Entrepreneur Parole (IEP) process for startup founders in AI and other critical and emerging technologies. The time it takes for the U.S. Citizenship and Immigration Services (USCIS) to adjudicate IEP cases is more than two years and the application and activation process are time-consuming and often impractical compared to work visas, such as the O-1A. Take a look at this previous column in which I compare the O-1A visa and IEP.
In addition, the executive order requires the DHS to continue its efforts to modernize the H-1B program (see last week’s Ask Sophie column), improve the participation of AI experts in the H-1B program, and enhance the ability of experts in AI and other critical and emerging technologies and their dependents to get green cards to become permanent residents.
As part of this modernization effort, I would love to see the USCIS:
- Recapture unused green card numbers from previous years to bring the priority dates for employment-based green cards current on the Visa Bulletin.
- Change the F-1 student visa from a nonimmigrant visa to a dual-intent visa to retain international students who graduate from American universities in the U.S. That would also reduce the F-1 denial rate, which has increased substantially in recent years. Most F-1 visas are denied because students fail to demonstrate to consular officials that they have nonimmigrant intent — meaning that the consular officer believes they wish to live in the U.S. long-term.
For the United States to remain a beacon of hope for the world’s best and brightest to fully develop and utilize their talents for the greatest good, it would be beneficial if we had a clear path to recruiting international students to permanently reside in the United States.
Domestic O, F and J visa interview waivers
The executive order asks the State Department to consider initiating within 180 days a domestic visa renewal program to include O-1A for extraordinary ability; E investor, trader, and essential employee visas; academic J-1 research scholars; and F-1 students in STEM fields. This could potentially benefit over a million immigrants per year.
Earlier this year, the State Department announced a pilot domestic visa renewal program for H and L visa renewals.
Under this pilot program, which has not yet launched, a new consular division would be set up in Washington, D.C., to process H and L visa renewals and enable holders to obtain a visa foil (often called a “visa stamp”) in their passports without leaving the United States.
Currently, visa holders who went through a change of status or visa-renewal process without leaving the U.S. must travel abroad to obtain a visa foil from a U.S. embassy or consulate.
Streamline application processes
The executive order directs the Department of Homeland Security, which oversees the USCIS, and the Department of State, which oversees consular visa and green card processing, to within 90 days streamline the visa and green card application and interview process for beneficiaries with expertise in AI or other critical and emerging technologies.
It’s unclear what actions the State Department and DHS and the agencies within the DHS — including the USCIS, Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE) — will take to meet this provision beyond what is suggested in the executive order. The USCIS does not require interviews for student or work visas as a temporary measure since COVID, and it could utilize this authority to extend the waivers of in-person interviews for nonimmigrant visas. Additional offerings could include, for example, expedited processing of visas and green cards for applicants working in AI or give preference to H-1B candidates with job offers in the AI field in the annual H-1B lottery, theoretically speaking.
Regarding the State Department extending the visa interview waiver program for those who work or are planning to study in the AI field: The current interview waiver program is set to expire at the end of this year. Under today’s process, consular officers have the discretion to waive the visa interview requirement for certain visa beneficiaries who have previously received any type of visa and have never been refused a visa (unless it was overturned). Currently, individuals seeking a new or renewed F-1 student visa, J-1 exchange visitor student visa, H-1B or H-1B1 visa, H-2 visa for temporary workers, H-3 trainee visa, H-4 dependent visa, M-1 student visa or O-1 visa are eligible to get their consular interview waived.
Hopefully the agencies will maintain the discretion to waive interviews going forward.
Limit J-1 foreign residency requirement
Currently, most J-1 educational and cultural exchange visa holders must return to their home country to live for at least two years after their J-1 visa expires. Individuals who are unable or do not wish to return to their home country for two years may file for a waiver of the two-year foreign residency requirement from the State Department, which manages the J-1 program.
The executive order asks the State Department to establish new criteria within 120 days for designating countries and skills on its Exchange Visitor Skills List so that individuals who are highly skilled in AI and critical and emerging technologies and come to the United States on a J-1 visa can “continue to work in the United States without unnecessary interruption.”
The State Department could deem the departure of individuals in the AI field for two years detrimental to U.S. interests and automatically waive the 212(e) two-year foreign residency requirement.
Exempt AI jobs from PERM
The executive order requires the Department of Labor to update within 45 days the “Schedule A” list of occupations that, if filled by a foreign national, will not adversely affect U.S. workers. The Labor Department must solicit input from the private sector to determine the occupations in AI and other STEM-related fields for which the number of available and qualified U.S. workers falls short and international talent is most needed.
Employers that file an EB-2 advanced degree or exceptional ability green card or EB-3 skilled worker green card petition on behalf of an employee working in a Schedule A occupation can bypass the lengthy and costly PERM labor certification process.
Attract AI talent
The executive order directs several agencies — including the State Department, the DHS, the Commerce Department and the White House’s Office of Science and Technology Policy — to create programs to attract and retain experts in AI and other critical and emerging technologies who are seeking to study, work or conduct research in the U.S.
Specifically, the order calls for these agencies to create within 120 days both a comprehensive guide for AI experts that lays out their options for working in the United States and a public report containing relevant data on how AI experts have used the U.S. immigration system.
The order also requires the State Department and DHS to create a program within 180 days that identifies and attracts top talent in AI and other critical and emerging technologies at universities, research institutions, and the private sector overseas, and connect with international talent and educate them on research and employment opportunities in the United States and visa and green card options and “potential expedited adjudication.”
Fingers crossed that the executive order will yield more innovative and effective immigration policy reforms in the weeks and months to come!
— Sophie
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