Written by Hannah F. Little, Esq., Managing Partner, N.C. Board Certified Immigration Law Specialist.
President Joe Biden issued policy guidance in late October 2023 entitled Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. The executive order established “new standards for AI safety and security, protected Americans’ privacy, advanced equity and civil rights, stood up for consumers and workers, promoted innovation and competition, advanced American leadership around the world, and more,” according to the White House.
The executive order contained a few key provisions that promise a significant positive impact on foreign nationals who work in Artificial Intelligence (AI) or in the Science, Technology, Engineering and Mathematics (STEM) fields.
Specifically, the EO used “existing authorities to expand the ability of highly skilled immigrants and nonimmigrants with expertise in critical areas to study, stay, and work in the United States by modernizing and streamlining visa criteria, interviews and reviews.”
EB-1 extraordinary ability or outstanding researcher
The executive order prioritizes foreign nationals employed in the Artificial Intelligence sector for a green card under the First Preference EB-1 employment-based immigration category.
The EB-1 category is available to foreign nationals who are “outstanding” professors or researchers or have an “extraordinary ability” in the sciences, arts, education or business, as defined by United States Citizenship and Immigration Services (USCIS).
The foreign national must be extraordinary in their field in terms of knowledge, ability, expertise, and accomplishments and be part of the small percentage that has risen to the very top of their particular field of endeavor.
An FN applying for a green card in the EB-1 category must provide evidence that they have sustained national or international acclaim and their achievements have been recognized in the field of expertise.
The executive order from the Biden administration in October 2023 instructed the Secretary of Homeland Security to review and initiate any necessary policies in order to “clarify and modernize immigration pathways for experts in AI and other critical and emerging technologies, including … EB-1 noncitizens of extraordinary ability.”
There are many benefits to applying for a green card via the EB-1 category and the guidance in the executive order is an encouraging sign that the Biden administration is continuing to prioritize that pathway for AI professionals and STEM degree holders.
EB-2 National Interest Waivers
The Biden administration’s October 2023 executive order further enforced previous guidance about NIW eligibility for advanced Science, Technology, Engineering and Mathematics (STEM) degree holders, which encompasses those in the Artificial Intelligence field.
Usually, foreign nationals who have an “exceptional ability” or hold an advanced degree (or its equivalent), can receive an NIW and apply for permanent residency in the United States via the employment-based second preference (EB-2) category. NIWs are available for foreign nationals whose continued employment in the United States is determined to be in the national interest.
The updated guidance clarified that almost all STEM graduates can be eligible, or will soon be eligible, for an NIW, depending on their level of degree and professional experience, particularly those who hold an advanced degree in the critical and emerging technologies sectors (discussed below) designated by the White House. Foreign nationals employed in the AI field almost always fall into one of those categories.
This provides an avenue to permanent residence, and eventually citizenship, for many qualified foreign nationals that may not have been available previously.
Benefits of EB-1 extraordinary ability or outstanding researcher and EB-2 National Interest Waivers
The updated guidance from the White House in the executive order makes clear that the current administration is prioritizing those in the AI and STEM fields and will be more likely than not to approve their EB-1 or EB-2 green card petitions.
This is encouraging news for those in AI and other STEM fields as the EB-1 and EB-2 employment-based priority categories offer many positive benefits for applicable petitioners.
For instance, a foreign national AI or STEM professional applying for a green card via the EB-1 employment-based “exceptional ability”/ “outstanding researcher” category or the EB-2 National Interest Waiver have the ability to “self-petition.” While an employer may leverage these strategies for its employees, foreign nationals may also “self petition” in these categories, affording them the flexibility to work for any employer in their industry. Further, they are able to bypass the lengthy and expensive Labor Certification process and the requirement to demonstrate there are no qualified and available U.S. workers for the green card position.
Instead, the applicant can be granted permanent residency in the United States as long as they prove they will continue working in the applicable field after arriving in the country.
The EB-1 and EB-2 categories are still subject to the priority and cut-off dates established in the Visa Bulletin, the publication from the Department of State (DOS) detailing immigrant visa (green card) availability each month.
However, foreign national AI and STEM professionals can still shave years off their wait times for a green card by applying in the EB-1 or EB-2 category because they avoid the PERM Labor Certification, which currently adds a minimum of 18 to 24 months, or more, depending on circumstances. Bypassing this process offers significant time and cost savings.
O-1 nonimmigrant visa
The newly published guidance provided a potential pathway for AI and STEM professionals to more easily qualify and be approved for an O-1A nonimmigrant visa, which offers a significant advantage to impacted foreign nationals.
Generally, the O-1A nonimmigrant visa is available to foreign nationals who are extraordinarily talented or have reached a high-level of acclaim in the sciences, education, business or athletics. Those who qualify are initially admitted to the United States for a maximum period of three years, with the possibility of extensions of stay available in one-year increments.
The major benefit of the O-1 visa, especially for AI professionals and STEM degree holders, is that it’s not subject to a statutory cap, like the H-1B visa. This provides a strong alternative visa solution for qualified foreign nationals who are not selected in the H-1B visa lottery, or for employers who would prefer to avoid the H-1B lottery process altogether.
Critical and emerging technology fields list
In addition to the executive order, the Biden administration also released an updated Critical and Emerging Technologies List in early 2024. It is important to consider this list together with the executive order issued by Biden and the previously issued guidance on NIW eligibility for advanced Science, Technology, Engineering and Mathematics (STEM) degree holders. Foreign nationals with talents and skills in the fields described in the Critical and Emerging Technologies List are more likely to be approved in the EB-1 extraordinary ability or outstanding researcher and EB-2 National Interest Waiver green-card priority groups, as well as for the O-1A visa.
That list, compiled by the White House Office of Science and Technology Policy (OSTP), is used to “inform government-wide and agency specific efforts concerning U.S. technological competitiveness and national security” and for compiling “initiatives to research and develop technologies that support national security missions, compete for international talent, and protect sensitive technology from misappropriation and misuse.” It encompasses a broad range of fields, including advanced computing, engineering, semiconductors, and space technologies.¹
Artificial Intelligence is one of the “critical and emerging technologies” featured on the list that is considered “of particular importance to the national security of the United States.” Specifically, several subfields are named in the updated list, including machine learning; deep learning; reinforcement learning; sensory perception and recognition; AI assurance and assessment techniques; foundation models; generative AI systems, synthetic data approaches for training, tuning and testing; planning, reasoning and decision making; as well as technologies dedicated to improving AI safety, trust, security, and responsible use.
Government use of Artificial Intelligence and impact to immigration
AI is already playing a role in how the Department of Homeland Security operates.
In mid-March, DHS launched a pilot program to “enhance immigration officer training through Generative AI,” among other initiatives. The organization is developing an application that incorporates GenAI to “improve the way the agency trains immigration officer personnel,” and “generate dynamic, personalized training materials that adapt to officers’ specific needs and ensure the best possible knowledge and training on a wide range of current policies and laws relevant to their jobs.”
“The goal is to help enhance trainees’ understanding and retention of crucial information, increase the accuracy of their decision-making process, and limit the need for retraining over time,” according to USCIS.
The pilot program is a direct result of the Biden administration’s AI executive order issued in October 2023 and is part of a broader initiative by DHS, according to the organization.
“The unprecedented speed and potential of AI’s development and adoption presents both enormous opportunities to advance our mission and risks we must mitigate,” Secretary of Homeland Security Alejandro Mayorkas said in a statement.
The statement continued: “The DHS AI roadmap and pilots will guide our efforts this year. … What we learn from the pilot projects will be beneficial in shaping how the Department can effectively and responsibly use AI across the homeland security enterprise moving forward.”
While immigration advocates applaud efforts to increase efficiency and enhance national security, there are concerns as to whether and how AI will be used to adjudicate cases or train officers on the law, given its documented biases and its lack of transparency in arriving at its answers.
Further, the White House Office of Management and Budget (OMB) released in late March a government-wide policy memorandum which was designed to “mitigate risks of Artificial Intelligence (AI) and harness its benefits.”
While broad in scope, the memorandum contains a few key priorities that could impact the immigration landscape.
First, the memorandum instructs federal agencies to develop “concrete safeguards” when “using AI in a way that could impact Americans’ rights or safety.” One of these safeguards includes ensuring there is “human oversight of impactful decisions” and that the applicable individuals “have the opportunity to seek remedy for AI harms.” If this safeguard isn’t in place, the agency will likely not be allowed to use AI in its decision making.
This oversight could be an extra safeguard for foreign nationals who have any aspect of their case aided, assisted or evaluated by AI and also could be an added layer of protection from any potential error caused by AI fraud detection, which could lead to an extraneous RFE or issuance of a Notice of Intent to Deny (NOID).
Additionally, agencies are directed to “improve public transparency in their use of AI.” They must now divulge an expanded annual inventory of their AI use cases, report metrics about the agency’s cases “that are withheld from the public inventory because of their sensitivity,” “notify the public of any AI exempted by a waiver from complying with any element of the OMB policy,” and in most cases “release government-owned AI code, models and data.” This could lead to immigration-related agencies such as the Department of Homeland Security, the Department of State and United States Citizenship and Immigration Services releasing the specific information about how, when, and in what circumstances they use AI to process and adjudicate cases.
Moreover, the memorandum aims for the removal of all “unnecessary barriers to Federal agencies’ responsible AI innovation.” This directive could, in an optimistic view, usher in further implementation, integration and improvement of AI use at the various immigration agencies.
Conclusion
Artificial Intelligence is evolving at a rapid pace and continues to become an integral part of many aspects of business, scientific and technological advances.
As such, the Biden administration has made clear it recognizes the importance of the AI and STEM fields and that it considers advancements in those industries a vital matter for U.S. national security and maintaining the nation’s competitiveness.
Under Biden, the White House appears to have made a concerted effort to attract the top talent in the AI and STEM fields by streamlining and modernizing the nonimmigrant and immigrant pathways and processes for foreign national professionals in those industries. Further developments are likely on the horizon.
The attorneys at Garfinkel Immigration continue to monitor all the evolving policies related to AI and is actively working with clients to develop comprehensive immigration strategies. Please contact the Firm to learn more or to receive additional information about the intersection of AI and immigration.
¹For the comprehensive list, please refer to https://www.whitehouse.gov/wp-content/uploads/2024/02/Critical-and-Emerging-Technologies-List-2024-Update.pdf