While only Congress has the authority to increase the number of green cards available to fill critical positions in AI and other key technological areas, the executive order puts forth proposals that federal agencies do have the authority to implement that could make it easier for employers to hire foreign talent.
One of the proposals that could have an immediate impact will help adjudicators identify AI experts who qualify for O and EB visas for individuals with extraordinary abilities. Such individuals need to show they are at the top of their field, but with emerging technologies like AI, the usual markers of success, like publications in academic journals, or book or album sales in the case of authors and artists, can be difficult to identify.
The order urges U.S. Citizenship and Immigration Services to expand existing guidance to ensure adjudicators know what to look for in identifying an expert in AI — something the agency can do without congressional approval, according to William Stock, a partner with Klasko Immigration Law Partner LLC.
"They can do that within the current regulations, which include a section that says, 'If box office and record sales don't apply to your field, give us comparable evidence.' And so what they're saying is, help your adjudicators by fleshing out what is that comparable evidence," Stock said in an interview with Law360.
The Oct. 30 executive order aims to clarify and modernize immigration pathways for noncitizens with expertise in AI and other emerging technologies, with a focus on cutting down visa appointment and processing times for such individuals and prioritizing those petitions.
Here again, USCIS and the U.S. Department of State both have the discretion to prioritize visa petitions for individuals with AI expertise and backgrounds in science, technology, engineering and math, a fact that Carlos Colombo, founding partner of Colombo Hurd, said in an interview Biden recognized in the executive order.
"We have such a critical need that USCIS, instead of putting up roadblocks ... and questioning these cases, needs to use its discretion to try to approve and attract these individuals. I think that's the biggest takeaway from this," he said.
The agency already has discretion to do this, Colombo said, adding that it's up to USCIS Director Ur M. Jaddou and service center directors to ensure that officers reviewing those cases quickly adopt the measure.
The measure builds on guidance the Biden administration has already issued to encourage adjudicators to use favorable discretion to approve cases involving individuals with STEM backgrounds.
"This takes it I think a little bit further, making sure that AI and critical technologies ... are recognized as critical needs," Colombo said.
The executive order also urges the U.S. Department of Labor to consider updating the so-called Schedule A, a list of occupations in which there are U.S. labor shortages, instructing the agency to seek public comment on worker shortages in AI and other occupations in STEM fields.
Currently, the list only includes nurses, physical therapists, artists and scientists of exceptional ability, and the performing arts. The prospect of that list expanding is an intriguing one, according to Angelo Paparelli, a partner at Vialto Law US PLLC.
The DOL's current permanent labor certification program, known as PERM, requires employers to go through a lengthy domestic job recruitment and advertising process to ensure there are no qualified U.S. workers to fill the position.
But petitions for Schedule A cases can be filed directly with USCIS once an employer obtains a prevailing wage determination, the average wage paid to similarly employed domestic workers that's calculated to ensure that wages paid to foreign workers don't depress wages for U.S. workers.
"This would leapfrog the delays associated with the current PERM labor certification process, and save an employer a year in processing time. It would also benefit noncitizen workers and their family members who would be able to achieve green card status more quickly," Paparelli said in an email.
While Fragomen, Del Rey, Bernsen & Loewy LLP partner Blake Chisam commended the administration for acknowledging the need to attract and retain the best and brightest global talent, he was less certain the outcome — at least for the Schedule A provision of the executive order — will be that impactful, saying it has been historically difficult for the DOL to expand or contract Schedule A.
"I just would say that there's no fait accompli here, at least if you look at it. Historically. I see some potential challenges," Chisam said.
The order also recommends expanding the ability of students and researchers to renew their J-1 visas domestically. According to Stock, the Klasko Immigration Law Partner attorney, this would eliminate exorbitant costs for foreign students who currently must leave the country and undergo an interview abroad to renew those visas.
Those individuals get vetted in person during their initial interview, so there's not much security risk involved with allowing them to renew their visas domestically, which will be cheaper, quicker and more efficient, Stock said.
"Once you know who they are, and you've met them one time, you can do all the vetting you need to do with a team of folks that you've put in a federal office building in Kentucky somewhere," he said.
While all of these measures could ease some headaches for employers hoping to hire foreign tech workers, Congress ultimately needs to solve the problem by increasing the number of green cards available for foreign workers to fill U.S. labor shortages, according to Chisam.
"Some of the policy proposals here would be better off with congressional imprimatur, right? And it ain't gonna happen, is my guess. So my ultimate conclusion is good effort, nice priorities," he said.
--Additional reporting by Allison Grande. Editing by Emily Kokoll and Jay Jackson Jr.
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