J-1 Visas

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Executive Order on AI: Attracting Global Talent to the United States

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In a move to strengthen the United States’ position in the global artificial intelligence (AI) landscape, on October 30, 2023, the Biden Administration issued an Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI), which sets forth a comprehensive strategy to attract and retain top AI talent from around the world. These initiatives aim to streamline immigration pathways and ensure that the U.S. remains a hub for innovation and technological advancement.

The Executive Order recognizes the importance of attracting and retaining foreign talent in critical and emerging technologies, such as AI. To achieve this goal, the order outlines several key directives to the Department of State (DOS) and the Department of Homeland Security (DHS) related to immigration, including:

  1. Streamlined Visa Processing: DOS and DHS are tasked with taking appropriate steps to streamline visa processing times for noncitizens seeking to work, study, or conduct research in AI or other critical and emerging technologies. This includes ensuring timely availability of visa appointments and facilitating continued availability for applicants with expertise in these fields.

  2. J-1 Skills List Revision:  DOS is required to consider initiating rulemaking to revise the DOS’s Exchange Visitor Skills List. This would impact the two-year foreign residence requirement.

  3. Stateside Visa Renewal Program:  DOS is required to consider implementing a domestic visa renewal program to enable qualified applicants, including highly skilled AI talent, to continue their work in the United States without unnecessary interruption. The program may also be expanded to include academic J-1 research scholars and F-1 students in STEM fields. (Note that a stateside renewal pilot program is already expected to launch in early 2024.)

  4. Policy Changes for Extraordinary Ability Applicants and Entrepreneurs:  DHS is directed to review and initiate necessary policy changes to modernize immigration pathways for AI experts. This includes reviewing categories such as O-1A and EB-1 extraordinary ability applicants, EB-2 advanced-degree holders, and startup founders in AI and other critical technologies who may benefit from the International Entrepreneur Rule which has largely been unused.  (The modernization of the H-1B program is also mentioned. See our post on the proposed H-1B rules for more information.)

  5. Revision to Schedule A List of Occupations:  The Department of Labor is instructed to publish a request for information (RFI) to solicit public input, including from industry and worker-advocate communities. The goal is to identify AI and STEM-related occupations for which there is an insufficient number of qualified U.S. workers, the designation of which which may streamline some permanent residency applications.

Note that many of these proposals would require rulemaking.  Jewell Stewart & Pratt will watch developments related to these directives closely, including the publishing of policy updates or proposed rules, and post updates here as they occur.

 © Jewell Stewart & Pratt PC 2023

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Executive Order regarding Hong Kong has Significant Impact to U.S. Immigration

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On July 14, 2020, President Trump issued Executive Order (EO 13936) that ends the special treatment of Hong Kong as a separate foreign state from China. The immigration impact to Hong Kong nationals is significant. For the permanent residence (i.e. green card) process, Hong Kong-born nationals will now be “charged” to China, rather than the “Worldwide” quota, meaning they will now be subject to the same multi-year wait times and immigrant visa backlogs as nationals born in mainland China for many employment-based preference categories. In addition, Hong Kong SAR passport holders with H, L, and O visas will now be subject to shorter visa validity periods, in accordance with the Department of State’s visa reciprocity tables. The EO also orders the termination of the Fulbright Exchange Program with Hong Kong and China, and J-1 exchanges for Hong Kong residents would likely now be subject to the two-year home country requirement that most programs for residents of China fall under. The exact effective date of the EO is not yet clear and we will update this blog post once we know more.

© Jewell Stewart & Pratt PC 2020

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USCIS Unlawful Presence Policy Memorandum for Fs, Js, and Ms Permanently Enjoined by District Court

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As described in a prior post, on May 10, 2018, USCIS announced a policy memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (“memo” or “unlawful presence memo”). This memo was finalized on August 9, 2018. As background, F, J, and M nonimmigrant visas are for international students, scholars, and participants in international educational/cultural exchange programs (including interns and trainees). In brief, the memorandum would have changed the start of accrual of “unlawful presence” for F, J, and M nonimmigrants from the day after DHS made a formal finding that the individual violated their nonimmigrant status to the day after the individual engaged in an unauthorized activity. Unlawful presence often has serious, irreversible consequences such as bars to re-entry to the United States. This memo essentially undid years of law and policy that allow for notice and due process before a bar is applied.

The memo has been the subject of litigation, and on February 6, 2020, in the case of Guilford College et al. v. Chad Wolf, U.S. Department of Homeland Security et al., No. 1:18CV891 (M.D. N.C. Feb. 6, 2020), the U.S. District Court for the Middle District of North Carolina granted the Plaintiff’s motion for partial summary judgment and issued a permanent, nationwide injunction enjoining USCIS from enforcing the memo

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Alarming Change of Policy for Treatment of Certain Status Violations for F, J, and M Visa Holders

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On May 10, 2018, USCIS announced a draft policy memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” F, J, and M nonimmigrant visas are for international students, scholars, and participants in international educational/cultural exchange programs (including interns and trainees).  The draft policy is slated to become final and effective on August 9, 2018.

In the draft policy, USCIS announced a dramatic change to the treatment of “status violations” by individuals in the U.S. on F, J, and M visas. A status violation is any failure to meet a term or condition of the visa, including unknowing and unintentional technical violations (e.g., lowering one’s course load below a certain number of credit hours, engaging in casual work, accruing too many days of non-work after school completion, etc.).

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State Department to commence field visits across the United States in review of its J-1 (Exchange Visitor) Visa Program

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News Release from Jewell & Associates, PC

The U.S. Department of State recently notified J-1-sponsoring organizations that it intends to conduct field visits of companies hosting interns and trainees on J-1 (Exchange Visitor) visas. The State Department's Exchange Visitor Program exists to foster global understanding through educational and cultural exchange. Foreign national participants in the program are issued J-1 visas in order to enter the United States, and are expected to return to their home country to share their exchange experiences when their program is complete. The State Department is planning to visit exchange visitors and their host companies across the United States as part of a review of the Intern and Trainee categories of this program. The visits will begin this month and they will be unannounced and unscheduled.

While most bad publicity about the Exchange Visitor Program has been focused on abuses of the Summer Work and Travel Program, it appears that the Department of State is implementing reviews program-wide to ensure participant safety and well-being. It is reasonable to assume that State representatives will want to talk to visitors and host company representatives about subjects at the core of the Exchange Visitor Program, including: The exchange visitors' experiences in the United States to date; how the host has introduced its visitors to American culture; the host's reasons for participating in the Exchange Visitor Program; and the new skills the host is teaching its visitors. Host companies with questions about these visits may contact their sponsoring organization for more information on what to expect.

By Christopher Beckerson and Claire Pratt. © Jewell & Associates, PC 2014 © Jewell & Associates, PC 2014