The AI Executive Order (EO) addresses the need for foreign talent to support the quickly growing Artificial Intelligence (AI) industry in the U.S. The Biden EO proposes that immigration-related federal agencies take action quickly to make it easier for qualifying employers to attract and retain required foreign talent. As only Congress can increase the number of available green cards, the EO puts forth visa options to try to overcome existing limitations.

From an immigration perspective, the EO calls for a reduction in visa appointment and processing times for individuals with expertise in AI and other emerging technologies. U.S. Citizenship and Immigration Service (USCIS) is urged to address and clarify existing guidance to help adjudicators know what to look for when reviewing AI expertise. Further, the EO notes the O and EB visas as options. To qualify for these visas, individuals must prove they are leaders in their fields. However, as AI is still an emerging technology, the typical proof points, including publications in academic journals, may be challenging to identify.

Further, the Department of Labor is encouraged to update the occupation list where there are existing labor shortages in the U.S., referred to as Schedule A. The DOL is asked to open a public comment period on worker shortages in STEM fields, including AI, to include these additional technology-related roles. The current list includes only a handful of roles, primarily in health care, the performing arts, and scientists and artists with exceptional ability.

The PERM process currently requires employers to complete a thorough recruitment and advertising process to prove the lack of available U.S. workers prior to recruiting foreign talent. However, if a petition for a Schedule A role is filed, the employer can quickly move forward, after finalizing a prevailing wage.

The domestic renewal of the J-1 visa is also recommended for students and researchers. Currently, J-1 visa holders must leave the country for their visa to be renewed.

Although each of these options may help to make it easier to attract and retain foreign talent in AI and other emerging technology roles, a more comprehensive approach to immigration is needed. Only Congress can address the core issues of U.S. immigration.

If you have questions about the AI Executive Order, Artificial Intelligence roles, or any other immigration-related issue, contact us at ILBSG. Our team of experienced attorneys has a depth of experience in U.S. immigration options for employment needs in the U.S., working with companies of all sizes.

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