By Marta Lillo
President Joseph Biden issued in late October an executive order on the "Safe, Secure and Trustworthy Development and Use of Artificial Intelligence," instructing government agencies to take steps to retain and attract talent in Artificial Intelligence (AI) and make visa processing more efficient for individuals coming to work and study in the U.S. in AI or other critical technologies.
The executive order aims to "use existing authorities to expand the ability of highly skilled immigrants and nonimmigrants with expertise in critical areas to study, stay, and work in the United States by modernizing and streamlining visa criteria, interviews, and reviews."
The directive directly helps high-skilled immigrants and doesn't cover the EB-5 Immigrant Investor Program but could aid AI-related EB-5 investors, says Dennis Tristani, the managing attorney at Tristani Law, LLC.
The order might prompt applicants in backlogged U.S. visa categories to switch to EB-5
Tristani explains that one potential impact involves individuals looking at EB-5 in the U.S. with nonimmigrant visa status. "The AI executive order could provide additional job opportunities to high-skilled immigrants, which could lead to an extension of nonimmigrant status in the U.S.," he explains.
This extended nonimmigrant status would also allow "for potential EB-5 investors to concurrently file Form I-485 to adjust status and ensure that they can remain in the U.S. until they receive their green card," the attorney adds.
Filing this form is part of the EB-5 process and allows investors already living in the U.S. to adjust their status from nonimmigrant to conditional permanent resident.
Meanwhile, Vivek Tandon, the founder and CEO of EB5 BRICS, explains the executive order could notably boost the number of EB-5 investors from India, as it comes at a time when "a wave of F-1 and H-1B visa holders in the U.S. pursue EB-5 because of the huge backlog for permanent residency for India born applicants under EB-1, EB-2 and EB-3 categories."
Given that the instruction is to retain and attract AI talent to the U.S., this could mean modernizing and streamlining visa criteria, interviews, and reviews, per the statement issued by the White House.
"If meaningful immigration reforms are introduced, that makes EB-1, 2, and 3 more viable categories to gain permanent residency, then we may see a slight decline in EB-5 filing numbers. However, on the other hand, if A.I. leads to job displacement, etc., then perhaps H-1B et al. categories may become harder to get approvals for, which may then lead to higher EB-5 applications as more F-1 visa holders would be inclined to pursue a direct path to U.S. residency, especially those who are born in traditionally backlogged countries such as India and China," Tandon concludes.
It's important to note that executive orders have the force of law like federal regulations, but they are not legislation. They are meant to be effective immediately, but implementation may vary depending on the scope and policy changes required.
In the meantime, Poorvi Chothani, Esq., managing partner at The Law Office of Poorvi Chothani, PLLC, cautions that “it is too early to say how the executive order will affect the EB-5 industry. There are already a few options for people with advanced or outstanding knowledge, like the EB-1 and O-1 visa categories. What really affects the migration of even these highly skilled people are the numerical caps in the different visa categories. Any change to these caps can only be bought about by Congress. I still think the EB-5 route, especially with concurrent filling for AOS [Adjustment of Status] for eligible candidates, is a very attractive one for permanent migration."