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November 23 2023

Visas and Green Cards for Artificial Intelligence and Machine Learning Workers

This is a discussion of President Biden’s new Executive Order 14110 regarding artificial intelligence which includes directives for visas and green cards for artificial intelligence/machine learning (“AI/ML”) and related workers. Overall, the Executive Order directs the government agencies involved in visas 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 for AI/ML and related workers; they should promulgate new policies in a few months. However, 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.

Temporary Visas

There are a number of temporary visas for AI/ML workers in existence - H-1Bs for professionals, L-1s for intercompany transferees, O-1As for those of extraordinary ability, and entrepreneurial parole, as well as a few others such as TN visas for Canadian and Mexican citizens, and E-2 investor visas.

The Executive Order specifically addresses O-1A visas. Hopefully USCIS will have new special criteria for O-1As for AI/ML workers that are not as restrictive as the current criteria. New rules are needed because AI/ML is a new industry and the O-1A current criteria, created decades ago, are not a good fit for a new emerging field. AI/ML professionals are often recent graduates and have not had enough time in their careers to satisfy the existing restrictive O-1A requirements.

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. Maybe now, per the Executive Order, they will be processed faster.
  • H-1B program “modernization” and “enhancing” of the process for those in AI/ML and other “critical and emerging technologies.” This may include cyber security professionals. It is unknown what changes may be considered for the H-1B process. Currently there is a lottery for these visas.
  • J-1 visa rules for scholars and researchers with a two-year home return stay per § 212(e) before getting an H-1B or green card may be modified to eliminate the two-year home residence requirement.
  • Temporary work visas may be renewed in the US at the State Department instead of at a Consulate or Embassy.

Green Cards

People of extraordinary ability can apply for EB-1A and those with advanced degrees whose immigration is in the National Interest can apply for EB-2 green cards. Petitions for EB-1 and EB-2 NIW may be more favorably decided for AI/ML workers as their skills are needed and in short supply. There are, however, long backlogs for EB-1 visas for people born in India and China, and EB-2 visas for everyone are backlogged a few years. We will see what the government does for these applications. 

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.

Even if “Schedule A” includes AI/ML, it may be quite a while before one may apply for adjustment of status (Form I-485) and get work (EAD) and travel (parole) permits because of quota backlogs. Unless concurrent filing is permitted 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 completing EB-2 and EB-3 green card applications; as well as EB-1 for people from China and India. 

The executive order also directs the 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 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.  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.