Beyond the AI Executive Order: The Imperative for Congressional Action on Immigration Policy

On Monday October 30, President Biden issued a landmark Executive Order (EO) to enable the United States to seize the tremendous benefits of artificial intelligence (AI), while also managing risks. The EO rightly recognizes the need for immigration policy change to protect the U.S. lead in AI, with several provisions designed to attract and retain relevant talent.

While the Biden administration’s efforts should be commended, in the realm of immigration policy an EO can only achieve marginal change within the boundaries of decades-old immigration law. For years the Bipartisan Policy Center has emphasized the necessity of congressional action for meaningful immigration reform. Without legislative change, there is a real possibility that the U.S. will lose the tech talent competition against China, risking its current status as the global leader in AI.

Immigration Provisions in the AI Executive Order

The EO is wide-ranging with several provisions designed to mitigate AI risks to Americans, enhance international collaboration on AI, and promote AI innovation and competition. At the heart of the efforts to boost America’s AI innovation are several immigration policy directives outlined in Section 5.1: Attracting AI Talent to the United States, summarized as follows:

1. Making Visa Processing More Efficient: visa processing will be streamlined for noncitizens with relevant expertise or who seek to work on, study, or conduct research in AI or other critical and emerging technologies. This will include ensuring timely availability of visa appointments and allowing those already in the U.S. to renew their visas without having to depart the country and disrupt their work.
2. Retaining Exchange Visitors with Critical Skills: consideration will be given to the criteria that designate the countries and skills on the Department of State’s Exchange Visitor Skills List. Specifically, the EO implies that efforts will be made to retain exchange visitors with skills “critical to the United States” by removing the requirement for these individuals to return to their home country for two years after completing their exchange visitor program. (Note: exchange visitors participate in programs often involving study, teaching, research, or professional training).
3. Identifying and Attracting Top Talent in Critical Emerging Technologies: discretionary authorities will be used, and a program will be established to identify and attract top talent in AI and other critical and emerging technologies overseas and educate them on opportunities and resources for research and employment in the United States. A comprehensive guide will outline options for working in the U.S., and a public report will analyze how experts in AI and other critical and emerging technologies have utilized the immigration system through the end of Fiscal Year 2023.
4. Modernizing Immigration Pathways for Top AI Talent: policy changes will “clarify and modernize” immigration pathways for experts in AI and other critical and emerging technologies including the O-1A (nonimmigrant) and EB-1 (permanent resident) visas for noncitizens of extraordinary ability; EB-2 green cards for advanced-degree holders and noncitizens of exceptional ability; and startup founders in AI and other critical and emerging technologies using the International Entrepreneur Rule. The H-1B “specialty occupation” program will continue to be modernized to “enhance its integrity and usage”, including changes to the process of adjustment to lawful permanent resident (LPR) status.
5. Soliciting Input on Updating ‘Schedule A’ Shortage Occupations: the Department of Labor (DOL) will publish a request for information (RFI) to solicit input on which AI and STEM-related occupations have an “insufficient number of ready, willing, able, and qualified United States workers” for the purpose of updating the Schedule A list of shortage occupations. (Note: if an occupation is on this list, employers do not have to conduct DOL-supervised individual recruitment efforts to demonstrate that there are insufficient U.S. workers to fill the role before hiring a foreign national, saving them time and money).

The Necessity of Congressional Action

The Biden administration should be commended for its focus on attracting and retaining AI talent: not only are we losing skilled workers to Canada, but we are also failing to take advantage of a brain drain from China. These issues are important to the American public, with BPC polling showing that 76% of voters strongly or somewhat support high-skilled people coming to work and live in the U.S., with support at 68% for Republicans, and 85% for Democrats. Message testing shows that emphasizing competitiveness with China is the most effective way to increase public support for Congressional action.

The administration should also be commended for its efforts to change what it can within its authority. The Schedule A shortage occupation list has not been updated by DOL since 1991 and it is high time that it gets a refresh.

However, the administration is constrained by laws last updated in 1990. BPC has written much about employment-based immigration reform, and we continue to call upon Congress to act.

One of the most impactful changes Congress can implement to protect the U.S. lead in AI is raising H-1B visa caps. Each year, the U.S. can issue a maximum of 65,000 H-1B visas plus 20,000 additional visas for advanced degree holders from U.S. universities. This limit is so restrictive that over 75% of individuals registering for H-1B visas in FY 2024 must be rejected. As applications routinely exceed the cap, H-1B recipients are chosen through a lottery with no regard to the importance or value of the applicant’s work for the U.S. H-1B workers are vital to technology industries, with roughly two-thirds working in computer-related occupations. A failure to raise the H-1B cap means turning away AI talent and driving them to work elsewhere, putting the U.S. AI lead at risk.

Congress should also raise green card caps. The annual limit for employment-based green cards was set in 1990 at just 140,000. More individuals are annually sponsored for green cards than this limit allows, resulting in a growing ‘cap-based’ backlog for employment-based green cards, which is currently around 1.3 million individuals. Within the 140,000 limit, no more than 7% can go to persons born in any single country, creating long wait times for large countries. Indian nationals make up roughly a quarter of foreign workers in Silicon Valley, yet hundreds of thousands of Indians will likely never receive a green card they have already been approved for. Congress should raise green card caps so more individuals can come and work to innovate our AI ecosystem.

Importantly, raising visa caps in isolation is unlikely to be enough. Congress should also provide increased funding for visa processing to deal with growing backlogs. The Executive Order promises timely availability of visa appointments for AI talent, but it isn’t clear how feasible this is without additional funding to staff relevant departments and enable efficiency improvements.

Finally, Congress should consider creating new visa categories to bring in AI talent. Nearly two-thirds of the top AI companies in the U.S. were founded or co-founded by immigrants. A new entrepreneurial visa would turbocharge this progress by bringing even more ambitious AI innovators into the country.

Conclusion

Congress has dragged its heels on immigration reform for far too long. Increasingly, attracting and retaining skilled workers is not just an economic imperative, but a national security one as well. BPC urges legislators from both sides of the aisle to work together now to secure the U.S. lead in AI and ensure that the Biden administration’s laudable efforts on attracting and retaining AI talent are not in vain.