President Biden's Executive Order On The Safe, Secure, And Trustworthy Development And Use Of Artificial Intelligence (October 2023): Benefits To U.S. Employers And Foreign Nationals From An Immigration Perspective

President Biden issued an Executive Order (#14110) on October 30, 2023, entitled “Safe, Secure Trustworthy Development and Use of Artificial Intelligence.” The purpose of this Executive Order (EO) was to advance and govern the development of Artificial Intelligence (AI) in a safe and secure manner within the U.S., using a coordinated approach with different U.S. government agencies. The EO describes many safeguards President Biden would like to have various government agencies put in place to protect the American public, but the EO also provided information on how he wanted various government agencies to explore how AI can improve and benefit society. There was also a section of the EO that specifically focused on AI and U.S. immigration. This writing will examine what the EO specifically stated with respect to modifying U.S. immigration policies as a result of the growing use of AI, and how U.S. employers and foreign nationals may potentially benefit from these changes from an immigration perspective.

Immigration benefits of EO #14110

The EO issued by President Biden instructs various government agencies to take action to ensure the safe and effective use of AI technology. Specifically, the EO puts forth a plan to improve cybersecurity. It also contains a plan to try to reduce the risk of synthetic content produced by AI systems, as well as protect the American public from dangerous AI that could be used to engineer dangerous biological weapons. However, Section 5 (Promoting Innovation and Competition) of the EO, instructs the U.S. Department of Homeland Security (DHS) to do the following (among other things):

• Streamline processing times of visa petitions and applications, facilitate visa appointment availability for foreign nationals with expertise in AI;
• Revise the U.S. Department of State's Exchange Visitor Skills List;
• Implement a domestic visa program to facility the ability of certain foreign nationals, particularly those with highly skilled talent in AI and critical and emerging technologies to continue their work in the U.S. without interruption;
• Create a program to identify and attract top talent in AI and other critical and emerging technologies at U.S. universities and U.S. research institutions and create a program to inform top STEM (Sciences, Technology, Engineering and Mathematics) talent of nonimmigrant and immigrant visa options and potential expedited adjudication of their petitions and applications.
• Utilize the rulemaking process to modernize the H-1B program.
• Request information from the public for input identifying AI and other STEM related occupations to be added to the list of Schedule A shortage occupations.
• Review and initiate policy changes necessary and appropriate to modernize immigration pathways for experts in AI and other critical and emerging technologies, using the O-1A (Extraordinary Ability Alien), EB-1 (Extraordinary Ability Alien) and EB-2 (Advance Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver) categories.

Since it has been eight (8) months from the issuance of President Biden's EO, some government agencies have now started to act as instructed by President Biden. For example, U.S. embassies and consulates around the world appear to be processing visa applications in less time and appointment wait times at some posts have decreased to pre-pandemic levels. In addition, the U.S. Department of Labor (DOL) has issued a Request for Information (RFI) to the public for comments as to what STEM and/or AI occupations should be added to the DOL's list of “Schedule A” shortage occupations. This is a list of shortage occupations that has not been updated since 1991. In addition, there appears to be an increase in the number of O-1A (Extraordinary Ability Alien), EB-1 (Extraordinary Ability Alien), and EB-2 (Advance Degreed Professionals or Aliens of Exceptional Ability Seeking a National Interest Waiver) petitions that have been filed and approved by USCIS in the last eight (8) months.

Foreign nationals who are highly skilled workers with advanced degrees (master's degree or PhD degree) in STEM or AI fields or who are working in STEM or AI occupations, may have a greater chance of success pursing the O-1A (Extraordinary Ability Alien), EB-1 (Extraordinary Ability Alien), and EB-2 (Advanced Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver (NIW)) categories than in the past. If U.S. employers are interested in alternative options to retain their highly skilled workers or to attract AI and STEM professionals, U.S. employers may now wish to consider these immigration benefit options, since accelerating the rapid hire of AI and STEM professionals in the U.S. is very much part of the Biden Administration's immigration policy agenda.

2024 Critical and Emergent Technologies List

President Biden's EO not only recognizes a need to attract and retain AI professionals in the U.S., but also a need to attract and retain foreign nationals who work in occupations in the areas of critical and emerging technologies. Critical and emerging technologies (CETs) are technologies that are potentially significant to U.S. national security. Here are the critical and emerging technologies that were included in the 2024 Critical and Emerging Technologies List from the National Science and Technology Council, which advises the Executive Office of the President of the United States:

• Advanced Computing;
• Advanced Engineering Materials;
• Advanced Gas Turbine Engine Technologies;
• Advanced and Networked Sensing and Signature Management;
• Advanced Manufacturing;
• Artificial Intelligence;
• Biotechnologies;
• Clean Energy Generation and Storage;
• Data Privacy, Data Security, and Cybersecurity Technologies;
• Directed Energy;
• Highly Automated, Autonomous and Uncrewed Systems (UxS), and Robotics;
• Human Machine Interfaces;
• Hypersonic;
• Integrated Communication Networks Technologies;
• Positioning, navigation, and Timing (PNT) Technologies;
• Quantum information and Enabling Technologies;
• Semiconductor and Microelectronics; and Space Technologies and Systems.

Each CET area includes a set of subfields that described its scope in more detail. For example, Advanced Computing includes the following: Advanced Supercomputing, including AI Applications, Edge Computing and Devices, Advanced Cloud Services, High-Performance Data Storage and Data Centers, Advanced Computing Architectures, Advanced Modeling and Simulation, Data Processing and Analysis Techniques, and Spatial Computing. Artificial Intelligence includes the following: Machine Learning; Deep Learning; Reinforcement Learning; Sensory Perception and Recognition; Next-Generation AI; Planning Reasoning Decision Making; and Safe and/or Secure AI. For more information on the various subfields for the different areas of CET, please see the following:

https://www.whitehouse.gov/wp-content/uploads/2024/02/Critical-and-Emerging-Technologies-List-2024-Update.pdf

STEM Degree Program List

DHS has created and issued to the public a STEM Degree Program List. This list may be found at the following address:

https://www.federalregister.gov/documents/2023/07/12/2023-14807/update-to-the-department-of-homeland-security-stem-designated-degree-program-list

The list is used to determine whether degrees obtained by F-1 students qualifies as a Science, Technology, Engineering, or Mathematics (STEM) degree. A STEM degree is needed in order to extend an F-1 student's Optional Practical Training (OPT) period for an additional two-year period beyond the initial one-year OPT period. This list may be used as a guide by U.S. employers and foreign nationals to determine if the education and/or past experience of the foreign national may qualify the foreign national as a STEM professional under President Biden's EO.

USCIS Policy Manual changes

Prior to the issuance of President Biden's EO in October 2023, USCIS had issued guidance to USCIS examiners with respect to the eligibility criteria for the EB-1 (Extraordinary Ability Alien) and EB-2 (Advance Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver) categories. This guidance and/or the changes to the USCIS Policy Manual appear to align with and appear to be a pre-cursor to President Biden's EO to attract and retain talent in the areas of AI and critical and emerging technologies, as well as those who work in STEM fields.

With respect to the changes in the USCIS Policy Manual impacting the EB-1 (Extraordinary Ability Alien) eligibility criteria, these changes were made in September 2023. These changes included the following:

• New examples of the types of evidence that may be submitted to show eligibility in the EB-1 (Extraordinary Ability Alien) criteria.
• The new examples specifically relate and/or mention STEM occupations.
• A petitioner may demonstrate that a particular criterion does not readily apply to the foreign national's occupation and may submit evidence that is of comparable significance to that criterion.
• The USCIS examiner may not limit the kind of evidence the USCIS examiner thinks the foreign national should be able to submit and deny the petition if that particular type of evidence (whether one of the prescribed types or a comparable evidence types) is not provided, if the foreign national nonetheless submitted other types of evidence that meet the regulatory requirements for the classification.
• Specific instruction for USCIS examiners to consider any potentially relevant evidence in the record, even if such evidence does not fit one of the regulatory criteria or was not presented as comparable evidence.
• Instructs USCIS examiners who are considering denying an EB-1 (Extraordinary Ability Alien) petition to provide a brief discussion that explains why a foreign national who was the beneficiary of previous O-1A (Extraordinary Ability Alien) nonimmigrant petition is not eligible for the EB-1 (Extraordinary Ability Alien) category.

Likewise, USCIS made changes to the USCIS Policy Manual with respect to the EB-2 (Advance Degreed Professional or Alien Exceptional Ability Seeking a National Interest Waiver) category. These changes were made in September 2022 and included the following:

• Clarified how STEM graduates and entrepreneurs may use this preference category;
• Emphasized the significance of letters from governmental and quasi-governmental entities;
• Provided a discussion with respect to the unique consideration that should be given by USCIS examiners to foreign nationals with advanced degrees in STEM fields.

With the changes to the USCIS Policy Manual and issuance of EO #14110, there appears to now be more opportunity for U.S. employers and foreign nationals to pursue the O-1A (Extraordinary Ability Alien), EB-1 (Extraordinary Ability Alien), and EB-2 (Advance Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver) categories than in the past. Government statistics for 2022 and 2023 reveal an increase in the number of visa petition approval notices being issued by USCIS for these categories, as well. All of this reflects a liberal and progressive policy on the part of the Biden Administration to attract and retain the best and the brightest from around the world.

Benefits of the EB-1 (Extraordinary Ability Alien) and EB-2 (Advance Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver) categories

There are some benefits to pursuing the EB-1 (Extraordinary Ability Alien) and EB-2 (Advance Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver) categories, besides the Biden Administration's efforts to make these preference categories more viable for U.S. employers and foreign nationals. One of the other benefits from pursuing these preference categories is that these categories permit self-sponsorship. This means the foreign national may file the visa petition on their own with the USCIS, without the assistance of the U.S. employer. In addition, there is nothing that would preclude the foreign national from pursuing both preference categories at the same time. (Note: A U.S. employer may still sponsor a foreign national under these preference categories, if the U.S. employer wished to do this.) Other benefits include the following:

• Unlike Green Card sponsorship through the PERM labor application program, there is no labor certification that is required to be obtained beforehand from the U.S. Department of Labor (DOL), so processing time is considerably less.
• It gives the foreign national the ability to secure a Priority Date faster than if the foreign national were to pursue Green Card sponsorship through the PERM labor application program; and
• Gives flexibility to allow the foreign national to pay all of the costs and fees associated with the processing of the EB-1 (Alien of Extraordinary) or EB-2 (Advanced Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver) petition, including all attorney's fees and government filing fees. (Note: A U.S. employer may still pay all of the costs and fees if it wished to do this, even if the foreign national were to self-sponsor.)

U.S. employers and foreign nationals may wish to now consider pursuing these visa petition options in some cases if certain requirements can be met.

What are the requirements for the EB-1 (Alien of Extraordinary Ability) and EB-2 (Advanced Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver) categories?

EB-1 (Alien of Extraordinary Ability)¹

In order to qualify for the EB-1 (Alien of Extraordinary Ability) category, the petitioner must show the beneficiary has a major, internationally recognized prize or award (Example: Nobel Prize, Pulitzer Prize, Oscar, Olympic Medal, etc.), OR meets at least three (3) out of ten (10) regulatory criteria. Once the foreign national has shown he or she meets at least three (3) out of ten (10) regulatory criteria that may be used to qualify, there is a final merits determination, where the USCIS examiner is to consider the EB-1 petition in its entirety to determine if the evidence establishes the foreign national has sustained national or international acclaim and/or has risen to the top of his/her field. The ten (10) regulatory criteria include the following:

• Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;
• Evidence of the foreign national's membership in associations in the field which demand outstanding achievement of their members;
• Evidence of published material about the foreign national in professional or major trade publications or other major media;
• Evidence the foreign national has been asked to judge the work of others, either individually or on a panel;
• Evidence of the foreign national's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
• Evidence of the foreign national's authorship of scholarly articles in professional or major trade publications or other major media;
• Evidence the foreign national's work has been displayed at artistic exhibitions or showcases;
• Evidence of the foreign national's performance of a leading or critical role in distinguished organizations;
• Evidence the foreign national commanded a high salary or other significantly high remuneration in relation to others in the field;
• Evidence of commercial successes in the performing arts.

The more criteria the foreign national is able to meet from the above list, typically, the stronger the case. The USCIS examiner does have discretion with respect to the final merits determination of the case, and if the evidence is not strong or the accomplishments are not significant, even if they, technically, meet more than three (3) of the above listed criteria, the USCIS examiner may deny the EB-1 petition. However, with the changes made to the USCIS Policy Manual foreign nationals who pursue this category may now have more favorable outcomes, depending on the particular facts of their case.

EB-2 (Advance Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver)

In order to qualify for the EB-2 (Advance Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver), the petitioner must establish the following:

• The foreign national has an advanced degree or is a person of exceptional ability²; AND
• The waiver of the job offer requirement is in the “national interest.”

USCIS may grant a national interest waiver as a matter of discretion, if the petitioner is able to demonstrate the following three (3) items:

1. The foreign national's proposed endeavor has both substantial merit and is of national importance;
2. The foreign national is well positioned to advance the proposed endeavor; AND
3. On balance, it would be beneficial to the U.S. to waiver the job offer requirement and/or the PERM labor certification requirement.

With respect to the three-prong test, the USCIS Policy Manual at Chapter 5 (Advanced Degree or Exceptional Ability) states the following:

For the second prong, the person's education and skillset are relevant to whether the person is well positioned to advance the endeavor. USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence for purposes of the assessment under the second prong. Persons with a Ph.D. in a STEM field, as well as certain other persons with advanced STEM degrees relating to the proposed endeavor, have scientific knowledge in a narrow STEM area since doctoral dissertations and some master's theses concentrate on a particularized subject matter. USCIS considers whether that specific STEM area relates to the proposed endeavor. Even when the area of concentration is in a theoretical STEM area (theoretical mathematics or physics, for example), it may further U.S. competitiveness or national security as described in the proposed endeavor.

Finally, with respect to the third prong, it is the petitioner's burden to establish that factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification. When evaluating the third prong and whether the United States may benefit from the person's entry, regardless of whether other U.S. workers are available (as well as other factors relating to prong three discussed above, such as urgency), USCIS considers the following combination of facts contained in the record to be a strong positive factor:

• The person possesses an advanced STEM degree, particularly a Ph.D.
• The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
• The person is well positioned to advance the proposed STEM endeavor of national importance.

The benefit is especially weighty where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is supported by letters from interested U.S. government agencies.”

The changes made to the USCIS Policy Manual with respect to the EB-2 (Advance Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver) preference category appear to benefit those who have advanced STEM degrees or who work in a STEM field, focused on critical and emerging technologies important to U.S. competitiveness and U.S. national security.

Information and/or documentation needed to conduct a free preliminary evaluation

Fakhoury Global Immigration (FGI) would be happy to conduct a free preliminary evaluation for any U.S. employer or foreign national interested in exploring whether the O-1A (Alien of Extraordinary Ability), EB-1 (Alien of Extraordinary Ability) or EB-2 (Advanced Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver) may be a viable option. In order to assist in this process, FGI would require the following items, if interested in analyzing O-1A (Alien of Extraordinary Ability) or EB-1 (Alien of Extraordinary Ability) eligibility:

1. Copy of the foreign national's resume;
2. Indicate the highest degree or level of education the foreign national has achieved and the name of the granting institution (Example: PhD degree, master's degree, bachelor's degree, etc.);
3. Description of the foreign national's area of expertise (3 sentences);
4. Confirmation foreign national has any of the following (Note: Please cut and paste any relevant items from the following list): 
   • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;
   • Evidence of the foreign national's membership in associations in the field which demand outstanding achievement of their members;
   • Evidence of published material about the foreign national in professional or major trade publications or other major media;
   • Evidence the foreign national has been asked to judge the work of others, either individually or on a panel;
   • Evidence of the foreign national's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field (Examples: Research articles, books, book chapters, patents, trademarks, etc.);
   • Evidence of the foreign national's authorship of scholarly articles in professional or major trade publications or other major media;
   • Evidence the foreign national's work has been displayed at artistic exhibitions or scientific conferences;
   • Evidence of the foreign national's performance in a leading or critical role with a distinguished organization(s);
   • Evidence the foreign national commanded a high salary or other significantly high remuneration in relation to others in the field;
   • Evidence of commercial successes in the performing arts.

If U.S. employer or foreign national is interested in exploring whether the EB-2 (Advanced Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver) may be a viable option, please provide the following:

1. Copy of the foreign national's resume;
2. Indicate the highest degree or level of education the foreign national has achieved and the name of the granting institution (Example: PhD degree, master's degree, bachelor's degree, etc.);
3. Description of the foreign national's area of expertise (3 sentences);
4. Description of how the foreign national will advance his/her field of expertise or the specific endeavor related to the foreign national's area of expertise in the U.S.? (3 sentences);
5. Description of why it would be in the U.S. government's interest to waive the test of the U.S. labor market, articulating how the foreign national's specific endeavor is both of national importance broadly and of substantial merit to the U.S. (3 sentences);
6. Confirmation the foreign national has any of the following (Note: Please cut and paste any relevant items from the following list): 
   • Evidence of patents, trademarks or copyrights issued to the beneficiary;
   • Evidence of awards issued to the beneficiary in their field;
   • Evidence of grants issued to the beneficiary in their field;
   • Evidence of articles about the beneficiary or the beneficiary's work;
   • Evidence the beneficiary's work has been cited;
   • Evidence of the beneficiary's research or original contributions in the field (Examples: Research article(s), books, book chapters, etc.);
   • Documentation showing technology the beneficiary invented or helped invent and how others use the technology;
   • Letters of experience from former employers documenting the beneficiary's long employment, particularly in STEM professions, AI professions, or with critical and emerging technologies;
   • Letters from experts in the field attesting to the beneficiary's achievements and describing how the beneficiary is positioned to advance the field;
   • Letters from customers in the industry attesting to the beneficiary's achievements and describing how the beneficiary is positioned to advance the field;
   • Letters from interested government agencies describing how the beneficiary is positioned to advance the field;
   • Letters from quasi-government agencies describing the importance of the beneficiary's work and how the beneficiary is positioned to advance the field;
   • Evidence the work the beneficiary performs (or endeavor) supports U.S. national security;
   • Evidence the work the beneficiary performs (or endeavor) is listed on the critical or emerging technologies list;
   • Evidence the work the beneficiary performs (or endeavor) enhances U.S. competitiveness;
   • Evidence the work the beneficiary performs (endeavor) supports critical U.S. infrastructure;
   • Evidence the work the beneficiary performs (or endeavor) potentially leads to U.S. job creation;
   • Evidence the work the beneficiary performs (or endeavor) leads to the creation of significant revenue or economic revitalization in the U.S.;
   • Evidence the work the beneficiary performs (or endeavor) has a global or an international impact;
   • Evidence the work the beneficiary performs (or endeavor) benefits an urgent U.S. public health or U.S. safety issue.

Conclusion

While President Biden's EO #14110 is designed to guide AI development and deployment through federal agency leadership in order to ensure the safe and secure development of AI, it also contains sections that are highly beneficial to AI and STEM professionals, or those with education and experience in critical and emerging technologies. This EO, coupled with the changes made to the USCIS Policy Manual with respect to how USCIS adjudicators should review petitions submitted for the EB-1 (Extraordinary Ability Alien) and EB-2 (Advance Degreed Professional or Alien of Exceptional Ability Seeking a National Interest Waiver) categories, may make these benefits more attainable for foreign nationals, than previously. It is possible that with the upcoming 2024 presidential election, there may be a policy shift away from what the Biden Administration is pursuing. However, at the moment, U.S. employers and foreign nationals would be well served to look closely at these benefit types when exploring both their nonimmigrant and immigrant visa options.

Footnotes

1. The requirements for the O-1 (Extraordinary Ability Alien) nonimmigrant category are practically the same as the requirements for the EB-1(A) (Extraordinary Ability Alien) Green Card preference category. Therefore, for the sake of brevity, these requirements of O-1 category have not been listed.

2. In order to establish the foreign national is an alien of exceptional ability the foreign national evidence must show the foreign national meets three (3) of the following six (6) criteria: 1) Evidence the beneficiary has a degree, diploma, certificate, etc. from a college, university of school; 2) Evidence the beneficiary has ten (10) years or more of full-time experience in the field in which he or she is being sought; 3) Evidence the beneficiary has a license to practice in his or her profession; 4) Evidence the beneficiary has commanded a high salary; 5) Evidence the beneficiary is a member in a professional association; and 6) Evidence the beneficiary has achieved significant recognition for achievements in his or her field by peers, government entities, etc.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.