Biden's AI Executive Order Explained: What It Means for NIW/EB1A Applicants
On October 30, 2023, President Biden signed an Executive Order on AI that explicitly calls for attracting and retaining AI/STEM talent. This article provides an in-depth analysis of the Executive Order's concrete implications for NIW and EB1A applicants.
Biden's AI Executive Order Explained: What It Means for NIW/EB1A Applicants #
Key Takeaways
- On October 30, 2023, President Biden signed the Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence (Executive Order 14110)
- Section 5 of the Executive Order explicitly calls for attracting and retaining top global talent in AI and STEM fields
- The Executive Order directs the State Department and USCIS to streamline O-1A, EB-1A, and EB-2 NIW visa/green card adjudication processes
- Applicants in AI, machine learning, data science, semiconductors, and related fields will directly benefit
- The Executive Order itself does not change the law, but it will influence USCIS policy guidance and adjudication standards
On October 30, 2023, President Biden signed a landmark Executive Order -- the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. This 111-page order covers AI safety, privacy, fairness, innovation, and multiple other dimensions. For researchers working in AI and STEM fields in the United States, the most noteworthy section is Section 5 -- on attracting and retaining global AI talent.
This article analyzes the Executive Order's key provisions from the perspective of NIW and EB1A applicants and examines its practical impact on green card application strategy.
Core Background: The Global AI Talent War #
Before signing the Executive Order, the U.S. government had already recognized a stark reality: the global AI talent war is intensifying. According to MacroPolo's data, approximately 38% of the world's top AI researchers work in the United States, but a significant proportion hold temporary visas. If these individuals leave the U.S. due to visa issues, it would severely undermine America's competitiveness in AI.
The Executive Order's core logic: The United States must strike a balance between AI safety regulation and talent attraction. On one hand, AI technology requires oversight; on the other, the U.S. must ensure the world's best AI talent wants to stay -- rather than moving to China, Europe, or other competitors. This is why the Executive Order, while emphasizing AI regulation, dedicates an entire section to talent immigration.
This context is an explicit positive signal for NIW/EB1A applicants. It indicates that the U.S. government, at the policy level, recognizes the importance of AI/STEM talent to the national interest -- which aligns perfectly with the "national importance" that Dhanasar Prong 1 requires you to demonstrate.
Section 5 Analysis: Key Immigration-Related Provisions #
Section 5 of the Executive Order is titled "Attracting Talent from Around the World" and contains multiple directives directly related to visa and green card adjudication.
5.1 Streamlining Visa Processes #
The Executive Order directs the State Department and DHS to take measures within 90 days to streamline visa processing for professionals in AI and STEM critical technology fields. Specifically:
| Measure | Visa Type Affected | Impact on NIW/EB1A |
|---|---|---|
| Streamline visa interviews and processing | J-1, H-1B, O-1A | Indirect benefit: shortens overall immigration timeline |
| Update O-1A adjudication criteria | O-1A | If O-1A approval becomes easier, it can serve as precursor evidence for EB1A |
| Clarify that AI research qualifies as "critical and emerging technology" | All STEM visas | Directly benefits NIW/EB1A "national interest" arguments |
| Provide more flexible visa options for STEM PhDs | F-1 OPT, H-1B | Buys more time for green card applications |
5.2 Modernizing Immigration Adjudication Standards #
The Executive Order instructs USCIS to update its internal Policy Manual, clarifying evidence evaluation standards for AI and critical technology fields. This provision has the most direct impact on NIW and EB1A applicants.
Specific impact: The Executive Order requires USCIS, when evaluating "extraordinary ability" (EB1A) or "national interest" (NIW) in the AI field, to consider:
- The applicant's research achievements and influence in AI/ML
- Open-source projects, code contributions, technical standards development, and other non-traditional academic contributions
- Work in emerging sub-fields such as AI safety and AI ethics
- Contributions in fields on the Critical and Emerging Technologies (CET) list
5.3 Retaining International STEM Talent #
The Executive Order also calls for dedicated strategies to retain international STEM students educated in the United States. This includes extending STEM OPT periods and streamlining H-1B-to-green card transitions. While these measures don't directly change NIW/EB1A adjudication standards, they create a more STEM-talent-friendly policy environment overall.
Three Specific Impacts on NIW Applications #
Impact 1: "National Interest" Argument Becomes Easier #
The core of an NIW application is demonstrating through the Dhanasar three-prong framework that your work serves the U.S. national interest. The Executive Order's signing provides AI and related STEM field applicants with a powerful policy argument.
In your Petition Letter, you can now directly cite this Executive Order to argue that your research field has been recognized by the U.S. government as having "national interest." For example:
Argument example: "The significance of Petitioner's research in [specific AI subfield] to the national interest of the United States is further evidenced by Executive Order 14110, signed by President Biden on October 30, 2023, which explicitly identifies artificial intelligence as a technology critical to national security, economic competitiveness, and public welfare. The Executive Order specifically calls for attracting and retaining top AI talent in the United States, recognizing that advances in AI by researchers such as the Petitioner directly serve the national interest."
Impact 2: Non-Traditional Evidence Gains Recognition #
For many AI/CS applicants, traditional academic metrics (journal publications, journal citations, etc.) may not fully capture their contributions. Much important AI research is published as arXiv preprints, and many key contributions appear through open-source code, GitHub projects, technical blogs, and other non-traditional channels.
The Executive Order directs USCIS to consider broader evidence types when evaluating AI talent, meaning:
| Traditional Evidence | Newly Recognized Evidence Types |
|---|---|
| SCI journal papers | arXiv preprints, conference papers (NeurIPS, ICML, etc.) |
| Journal citation counts | GitHub Stars, open-source project usage metrics |
| Academic peer review | Technical standards development, AI safety audit participation |
| Academic awards | Kaggle competition rankings, technical challenge results |
| Traditional media coverage | Technical blog citations, industry conference invitations |
Impact 3: Processing Speed May Improve #
The Executive Order directs USCIS to expedite processing in AI and STEM critical technology fields. While specific measures still need time to implement, combined with the NIW Premium Processing (expedited processing) USCIS opened in March 2023, AI applicants may experience faster adjudication.
NIW Premium Processing currently takes 45 business days at a cost of $2,500. If the Executive Order's measures are successfully implemented, this timeline could potentially shorten further in the future.
Impact on EB1A Applications #
The Executive Order also benefits EB1A applicants. EB1A requires demonstrating "extraordinary ability" in one's field, typically by meeting at least three of ten criteria.
Potential impact of the Executive Order on EB1A's ten criteria:
- Awards criterion: AI competition wins (Kaggle, ImageNet Challenge, etc.) may be more easily recognized
- Membership criterion: AI-related professional organization memberships (AAAI, IEEE, etc.) carry more weight
- Media coverage criterion: Coverage in technology media (MIT Technology Review, The Verge, etc.) may be more readily accepted
- Original contributions criterion: Open-source AI frameworks, pre-trained models, and similar contributions are easier to argue as "major original contributions"
- High salary criterion: The AI industry's generally high salaries make it easier to satisfy the "above peers" requirement
Which Applicants Benefit Most? #
Not all STEM applicants benefit equally from this Executive Order. Here is a ranking by benefit level:
| Benefit Level | Field | Reason |
|---|---|---|
| Highest | AI/Machine Learning/Deep Learning | Core focus of the Executive Order |
| Very High | Data Science/Big Data | Key component of AI infrastructure |
| Very High | Semiconductors/Chip Design | Listed on the Critical and Emerging Technologies list |
| High | Cybersecurity/AI Safety | Executive Order specifically emphasizes AI safety |
| High | Quantum Computing | Priority area on the CET list |
| Medium-High | Biotechnology/Computational Biology | Cross-application of AI in biological fields |
| Medium | Other STEM fields | Indirect benefit from overall STEM-friendly policies |
Limitations of the Executive Order #
It must be emphasized that an Executive Order is not legislation -- it cannot directly change immigration law statutes. An Executive Order's function is to guide executive branch agencies (such as USCIS and the State Department) on how to implement existing law.
Limitations to note:
- An Executive Order can be revoked or modified by the next president (2024 was an election year; a change in administration could shift policy direction)
- Specific implementing measures require each agency to develop detailed rules within 90-180 days, most of which were still under development
- Executive Orders cannot override the basic immigration law framework; NIW and EB1A legal standards themselves will not change
- USCIS adjudicators have case-by-case discretion and may not adjudicate every case in the spirit of the Executive Order
How Should Applicants Respond? #
Based on the Executive Order's content and spirit, we recommend the following strategies for AI/STEM NIW and EB1A applicants:
1. Cite the Executive Order in your Petition Letter
Use the Executive Order as one of several policy arguments demonstrating "national interest." Don't treat it as your sole argument, but rather as a supplement to your academic evidence -- it confirms from a policy level the national importance of your field.
2. Strengthen collection of non-traditional evidence
If you have open-source projects, technical blog posts, industry conference presentations, AI competition results, or other non-traditional scholarly contributions, now is the time to systematically organize them and incorporate them into your petition materials. The Executive Order provides policy support for the admissibility of such evidence.
3. Establish connections to the "Critical and Emerging Technologies" list
The White House's CET list covers 19 fields including AI, quantum computing, advanced manufacturing, and biotechnology. If your research falls within these fields, explicitly establish the connection in your materials, citing the CET list and the Executive Order to strengthen your "national interest" argument.
4. Consider accelerating your application timeline
The current policy environment is friendly to AI/STEM talent, but policies can change at any time (especially after the 2024 election). If you already meet the requirements, file as soon as possible to take advantage of the current policy tailwinds.
5. Seek independent recommenders who understand the AI field
The Executive Order emphasizes AI's importance to the national interest, making recommendation letters from renowned AI scholars or industry leaders particularly persuasive. If possible, seek recommenders with influence in AI safety, AI ethics, AI policy, and other cross-cutting fields.
Synergy with the September 2023 USCIS Policy Update #
Notably, just over a month before the Executive Order was signed (September 12, 2023), USCIS issued a policy update (Policy Alert PA-2023-27) updating evidence type guidance for O-1A and EB-1A. This update explicitly states that USCIS will consider "comparable evidence" when evaluating extraordinary ability, opening the door for non-traditional evidence types.
Taken together, the policy direction in fall 2023 is very clear: the U.S. government is systematically lowering barriers for AI/STEM talent to obtain green cards while increasing the flexibility of evidence evaluation.
| Policy | Date | Core Content | Impact |
|---|---|---|---|
| USCIS Policy Alert PA-2023-27 | 2023-09-12 | Updates O-1A/EB-1A evidence type guidance | Non-traditional evidence more easily admissible |
| AI Executive Order 14110 | 2023-10-30 | Attract and retain AI/STEM talent | AI field applications receive stronger policy support |
| Combined effect | -- | Consistent policy direction | More detailed policies likely to follow in early 2024 |
FY2024 Outlook #
FY2024 (October 2023 - September 2024) had just begun, and the Executive Order's various measures were expected to roll out over the following 3-6 months. We anticipated the following changes:
- USCIS may issue AI-field-specific policy guidance
- O-1A and EB-1A adjudication standards may become clearer and more lenient (at least in AI)
- NIW Premium Processing may expand to additional case types
- STEM OPT and H-1B-to-green card transitions may become smoother
Frequently Asked Questions #
Will the Executive Order directly change NIW adjudication standards?
No. NIW's legal standard is determined by the three-prong framework established in Matter of Dhanasar (2016), which the Executive Order cannot modify. However, the Executive Order can guide USCIS in how to interpret and apply these standards during adjudication -- for example, by clarifying that AI research falls within the scope of "national importance" or by considering broader evidence types when evaluating "well positioned."
Can non-AI STEM researchers benefit from the Executive Order?
Yes, indirectly. While the Executive Order's core focus is AI, it creates a generally more STEM-talent-friendly policy environment. Additionally, the White House's Critical and Emerging Technologies (CET) list covers quantum computing, biotechnology, advanced manufacturing, and many other STEM fields. If your research falls under any area on the CET list, you can cite the relevant policy support in your application.
Could the Executive Order be revoked after the 2024 election?
This is possible. An Executive Order is a presidential directive that can be revoked or replaced by the next president. If the 2024 election results in a change of administration, the new government may adjust directions on both AI policy and immigration policy. This is one reason we recommend eligible applicants file as soon as possible -- to take advantage of the current favorable policy window.
Will USCIS adjudication attitudes change immediately after the Executive Order is signed?
They will not change immediately. The Executive Order gives agencies 90-180 days to develop specific implementation measures. USCIS needs time to update internal policy manuals, train adjudicators, and issue new policy guidance. The earliest changes are expected to take effect in Q1 2024. Until then, NIW and EB1A adjudication standards will remain essentially unchanged.
How should I reference the Executive Order in my petition materials?
We recommend citing the Executive Order in the "National Importance" argument section of your Petition Letter as a policy-level supplementary argument. Specifically: 1) Briefly describe the Executive Order's background and core content; 2) Cite provisions directly relevant to your research field; 3) Argue how your research aligns with the national priorities identified in the Executive Order. Be careful not to over-rely on the Executive Order -- it is a supporting argument. Your core argument should still rest on your academic achievements and actual impact.
Conclusion #
Biden's AI Executive Order is a positive policy signal for NIW and EB1A applicants. It confirms, at the highest executive level, the importance of AI/STEM talent to the national interest and directs relevant agencies to streamline adjudication processes and update evaluation standards.
But the Executive Order is not a silver bullet -- it does not change legal standards themselves, and policy uncertainty remains (especially after the 2024 election). For applicants, the wisest strategy is: seize the current favorable policy window, reasonably cite the Executive Order as a supporting argument in your materials, and simultaneously ensure your core petition materials (recommendation letters, publications, citations, peer review records, etc.) are rock-solid.
If you work in AI or a related STEM field and are considering an NIW or EB1A application, contact GloryAbroad for professional recommender matching and peer review facilitation services to help you efficiently advance your green card application during this policy window.