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IMMIGRATION DECEMBER 08, 2023 | The Indian Eye 42

Will the Immigration Provisions in the AI

Executive Order Bring Meaningful Change Or

Be Mere Window Dressing?

BY CYRUS D. MEHTA AND KAIT- a commitment to supporting and change”. Although the ex- Labor shall publish a request On October 23, 2023, DHS
LYN BOX* American workers, d.) Artifi- ecutive order sets out numer- for information (RFI) to solic- promulgated a proposed rule
cial Intelligence policies must ous broad guidelines aimed at it public input, including from amending its H-1B regulations.
n October 30, 2023, be consistent with [the] Ad- ensuring that AI is developed industry and worker-advocate Cyrus Mehta’s previous blog
President Biden issued ministration’s dedication to ad- and used responsibly, it also communities, identifying AI discusses significant features
Oan Executive Order on vancing equity and civil rights, includes several provisions that and other STEM-related oc- of the proposed rule in depth.
the Safe, Secure, and Trust- e.) The interests of Americans lay the groundwork for immi- cupations, as well as additional One of the points of concern in
worthy Development and Use who increasingly use, inter- gration policy innovations for occupations across the econo- new the rule is its redefinition
of Artificial Intelligence (AI). act with, or purchase AI and AI experts. my, for which there is an insuf- of “specialty occupation” to
The stated purpose of the or- AI-enabled products in their Section 5 of the Executive ficient number of ready, will- require studies in a field that is
der is to ensure that the “devel- daily lives must be protected, Order first directs the DHS ing, able, and qualified United “directly related” to the H-1B
opment and use of AI” is gov- f.) Americans’ privacy and civ- Secretary to “review and ini- States workers”. “Schedule A” position. The proposed rule
erned “safely and responsibly”. il liberties must be protected tiate any policy changes the occupations are those for which further states, “A position is not
The executive order further as AI continues advancing, g.) Secretary determines necessary the Department of Labor has a specialty occupation if attain-
lays out eight “guiding princi- It is important to manage the and appropriate to clarify and “predetermined there are not ment of a general degree, such
ples and priorities” for the de- risks from the Federal Gov- modernize immigration path- sufficient U.S. workers who as business administration or
velopment and use of AI: “a.) ernment’s own use of AI and ways for experts in AI and other are able, willing, qualified, and liberal arts, without further spe-
Artificial Intelligence must be increase its internal capacity to critical and emerging technolo- available pursuant to regula- cialization, is sufficient to qual-
safe and secure, b.) Promoting regulate, govern, and support gies, including O-1A and EB-1 tion”, so employers may file an ify for the position. A position
responsible innovation, compe- responsible use of AI to deliv- noncitizens of extraordinary I-140, Immigrant Petition for may allow a range of degrees or
tition, and collaboration will al- er better results for Americans, ability; EB-2 advanced-degree Alien Workers for a beneficia- apply multiple bodies of highly
low the United States to lead in and h.) The Federal Govern- holders and noncitizens of ex- ry in these occupations without specialized knowledge, provid-
AI and unlock the technology’s ment should lead the way to ceptional ability…” Although a labor certification. For years ed that each of those qualifying
potential to solve some of soci- global societal, economic, and the executive order does not the only Schedule A occupa- degree fields or each body of
ety’s most difficult challenges, technological progress, as the further specify what measures tions have been nurses and highly specialized knowledge
c.) The responsible develop- United States has in previous the DHS Secretary should physical therapists, and immi- is directly related to the po-
ment and use of AI require eras of disruptive innovation take to achieve these goals, it grants of exceptional ability in sition.” As AI is an emerging
is hoped that the criteria the sciences or arts, including field, there are likely few de-
for O-1As and EB-1 and college and university teach- gree programs that are specif-
EB-2 I-140s could be ex- ers, and immigrants of excep- ically AI-focused as yet, so the
panded to make it easier tional ability in the performing definition of specialty occupa-
for AI experts to qualify. arts. Although a rulemaking tion should not be narrowed
In an emerging field such would be required to add oc- such that it thwarts the ability
as AI, it could be difficult cupations to the Schedule A of an AI specialist to obtain
for a prospective O-1A list, this change, if it were to an H-1B visa. Given that AI is
candidate to demonstrate, go into effect, would be a sig- beginning to be used in fields
for example, authorship nificant change that would al- ranging from finance to graphic
of scholarly articles in the low U.S. employers to sponsor design, introducing flexibility
field or receipt of nation- noncitizen AI professionals for into the O-1A, EB-1/EB-2, and
ally or internationally rec- permanent residence without H-1B criteria could benefit nu-
ognized prizes or awards going through the burdensome merous noncitizens who work
for excellence in the field, labor certification process. The with AI in some capacity.
as such scholarly publica- list of Schedule A occupations The executive order also
tions and awards may not has not changed for decades, includes provisions that may
exist yet. O-1 and EB-1 so it is high time that the list benefit noncitizen students
candidates may already be expanded even beyond AI studying AI. It instructs the
submit “comparable evi- occupations to include others Secretary of State to “consid-
dence” to establish eligi- for which there are a shortage er initiating a rulemaking to
bility if the listed criteria of U.S. workers, such as other expand the categories of non-
are not readily applicable computer occupations. immigrants who qualify for
to their occupation. This The executive order also the domestic visa renewal pro-
policy could allow pro- states that the DHS Secretary gram covered under 22 C.F.R.
m of spective O-1 and EB-1 should “continue its rulemak- 41.111(b) to include academic
CYRUS D. MEHTA & PARTNERS PLLC candidates to establish ex- ing process to modernize the J-1 research scholars and F-1
traordinary ability by high-
students in science, technology,
H-1B program and enhance
lighting other evidence its integrity and usage, includ- engineering, and mathemat-

more relevant to the field ing by experts in AI and other ics (STEM)” and “establish,
of AI, to which the tra- critical and emerging technol- to the extent permitted by law

  ditional criteria may not ogies, and consider initiating a and available appropriations, a
   
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€
‚   readily apply. Interesting- rulemaking to enhance the pro- program to identify and attract
ly, the executive order fur- cess for noncitizens, including top talent in AI and other crit-
ther states: “for purposes experts in AI and other critical ical and emerging technologies
of considering updates and emerging technologies and at universities, research insti-
tutions, and the private sector
their spouses, dependents, and
to the “Schedule A” list
2 6th Floor of occupations, 20 C.F.R. children, to adjust their status overseas, and to establish and

    656.5, the Secretary of to lawful permanent resident”. increase connections with that
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