Latest EB-5 News
December 6 2023
Artificial Intelligence and President Biden’s Executive Order for Artificial Intelligence/Machine Learning (“AI/ML”) Professionals and Related Workers
Overall, the Executive Order 14110 directs the government agencies involved in visas and immigration to develop policies to encourage immigration of AI/ML professionals and “streamline processing times.”
The USCIS, Department of Labor and State Department have not yet issued new policies and/or rules pursuant to the Executive Order. They should promulgate new policies in a few months, but now may be the time to start preparing applications, for the overall government’s policy is to promote the immigration of AI/ML professionals – and accelerate, when possible, the needed visas and green cards for their employment in the US.
The Executive Order specifically addresses O-1 visas, for those of “extraordinary ability.” USCIS needs to adopt new special criteria for O-1s for AI/ML workers that are not as restrictive as the current O-1 visa criteria. New rules are needed because AI/ML is a new industry and the O-1 current criteria, created decades ago, are not a good fit for a new emerging field. Also, AI/ML professionals are often recent graduates and have not had enough time in their careers to satisfy the existing restrictive O-1 requirements. However, the existing O-1 rules allow for “alternative” evidence if the rules are not a fit for the applicant. Maybe USCIS will issue a new policy memo regarding AI/ML which reinforces alternative evidence is sufficient.
This Executive Order also pertains to:
· Entrepreneurial parole visas. This is a new way to work in the US for a company where the foreign national owns a portion of the company in which US experienced venture capitalists invest at least $265,000. Up until now, this “visa” has rarely been issued and has taken a very long time for applications to be decided. USCIS may, per the Executive Order, “expedite” them to be processed quickly.
· H-1B program “modernization” and “enhancing” of the process for those in AI/ML and other “critical and emerging technologies.” It is unknown what changes may be considered for the H-1B process. Currently, there is an annual lottery for H-1B visas, making obtaining one unpredictable at best. Some H-1B visa numbers should be reserved for AI/ML workers.
There are other temporary work visas which AI/ML may use which will benefit from the Executive Order. They include E-2 visas for entrepreneurs; J-1 visa holders who need a 212(e) waiver of their home stay; L-1 visas for intracompany transferees, etc.
Applying for a “green card” for permanent resident status is usually a three-step process – the second and third steps, in some cases, can be “concurrently filed.”
The three usual steps are:
· Step 1: labor certification – to prove worker shortage
· Step 2: petition to USCIS for visa preference qualification
· Step 3: immigrant visa at U.S. consulate or adjustment of status through USCIS
People of “extraordinary ability,” those in the National Interest, and those on “Schedule A” are exempt from the first step and can start with the “petition” to USCIS, followed by the “immigrant visa” or “adjustment of status.”
People of “extraordinary ability” can apply for EB-1A and those with advanced degrees or exceptional ability whose immigration is in the “National Interest” can apply for EB-2 green cards. As with O-1 visas, new criteria are needed or a policy memo reinforcing AI/ML should be exempt from the usual rules as this is a new emerging industry.
One major change proposed by the Executive Order is to put AI/ML on the Department of Labor “Schedule A,” which exempts people from the complex and slow PERM Labor Certification worker shortage process. If AI/ML is on “Schedule A,” the employer would file a petition directly with USCIS, saving about a year or more of processing time. The Department of Labor was ordered to start this process in 45 days and thus it appears this rule change is probable. This is an excellent idea but the National Interest Waiver is a good alternative for those with a master’s degree and other criteria. Schedule A will be a good benefit for recent AI/ML graduates with a master’s degree.
There are, however, long backlogs for EB-1 and EB-2 visas for people born in India and China, and EB-2 visas for everyone are backlogged a few years. Even if “Schedule A” includes AI/ML professionals, it may be quite a while before one may apply for adjustment of status (Form I-485) for the green card and get work (EAD) and travel (parole) permits because of quota backlogs. Unless “concurrent” filing is permitted (the EB-1/EB-2 petition and Form I-485 together) without a current priority date – i.e., have AI/ML in a special Visa Bulletin category similar to the recently added Chart B, there will still be lengthy delays for getting temporary work and travel permits which people need while they await completing EB-2 and EB-3 green card applications and EB-1 and EB-2 applications for people from China and India. The EB-2 backlog for people born in India is more than 10 years. Since there is no EB-1 quota backlog at this time (except for people born in China and India), one may file an EB-1 petition concurrently with an adjustment of status (Form I-485).
The Executive Order also directs USCIS to enhance the processing of adjustment of status (Form I-485) applications to change status from, for example, an F-1 student visa or H-1B visa holder to a green card. However, as discussed above, there must be a current visa available to file for adjustment. Visa availability is governed by the Department of State Visa Bulletin (https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2024/visa-bulletin-for-november-2023.html). A person’s place in the visa line (called “priority date”) is established by the filing of the I-140 petition. Sorry to get hyper technical here, but visas and immigration are technical.
Having represented many technology workers and AI/ML professionals, I am pleased to talk with individuals and companies employing AI/ML professionals about visas and green cards. Please contact us for a consultation.