Many U.S. employers sponsor foreign nationals for a Green Card through the Program Electronic Review Management (hereinafter "PERM") labor certification process. Under this process, an employer is required to test the labor market by placing a series of advertisements to determine if there is an able, willing, qualified, and available U.S. worker to fill the permanent, full-time position which, if offered to the foreign national, forms the basis for Green Card sponsorship. If the employer is unable to find a U.S. worker, they may file a PERM labor application with the U.S. Department of Labor (DOL).
There are some occupations, however, thar the DOL has pre-determined there are not sufficient U.S. workers to fill these occupations. For these occupations, U.S. employers are not required to undergo the PERM labor certification process. These occupations can save U.S. employers a lot of time and money and can help foreign nationals to secure a priority date sooner. These occupations are listed on DOL's Schedule A, which may be found in Chapter 20, Section 656.5 of the Code of Federal Regulations. Schedule A may be revised as a result of the issuance of President Biden's Executive Order (#14110) entitled "Safe, Secure Trustworthy Development and Use of Artificial Intelligence"1 In October 2023. This article will provide an update as to when this revision may occur, to provide a best guess as to what new occupations may be listed on a revised Schedule A, and to impart information as to the Schedule A immigrant visa petition process.
What are the purposes of Executive Order #14110?
President Biden's Executive Order (EO) was issued on October 30, 2023; and its purpose is to advance and govern the development of Artificial Intelligence (AI) in the U.S. The EO instructs certain government agencies to ensure the safe and effective use of AI technology. It puts forth a plan to improve cybersecurity and reduce the risk of synthetic content produced by AI systems. It also outlines a plan to protect the American public from AI that could be used to engineer dangerous biological weapons. To accomplish these objectives, the U.S. government desires to retain and attract top talent from around the world in the field of AI technology as well as" critical and emerging technologies." Section 5 (Promoting Innovation and Competition) of EO #14110 instructs the DOL to issue a Request for Information (RFI) to solicit public input identifying AI and other STEM related occupations that have a shortage of qualified U.S. workers to work in these occupations in order to revise and expand the Schedule A list.2
When will the final rule to expand or revise Schedule A be issued?
On December 21, 2023, the DOL published its RFI entitled, "Labor Certification for Permanent Employment of Foreign Workers in the United States: Modernizing Schedule A to Include Consideration of Additional Occupations in the Science, Technology, Engineering, Mathematics (STEM) and Non-Stem Occupations." The initial period for submitting public comments was until February 20, 2024. However, DOL extended the public comment period until May 13, 2024.
DOL is currently reviewing the comments it received from the public with respect to expanding the list of Schedule A occupations. DOL has made public that it intends to complete its review of the public comments by August 2024. However, it is apparent that DOL requires more time to complete its review.
In any case, it is possible that a new Schedule A could be published at any time between now and the end of 2024.
What occupations may be added to Schedule A?
What new occupations may be listed on the revised Schedule A? While it is hard to know with certainty, there are some sources may provide some insight:
- 2024 Critical and Emergent Technologies List
One of the goals of President Biden's EO is to attract and retain AI professionals in the U.S. Therefore, a revised Schedule A may include AI-related occupations. Besides the need to attract and retain AI professionals, the EO also aims to attract and retain foreign nationals who work in occupations in the areas of critical and emerging technologies. The National Science and Technology Council, who advises the Executive Office of the President, maintains a list of what they deem as "critical and emerging technologies" (CETs) which are potentially significant to U.S. national security. The 2024 Critical and Emerging Technologies List comprises the following area:
- Advanced Computing.
- Advanced Engineering Materials.
- Advanced Gas Turbine Engine Technologies.
- Advanced and Networked Sensing and Signature Management.
- Advanced Manufacturing.
- Artificial Intelligence.
- Clean Energy Generation and Storage.
- Data Privacy, Data Security, and Cybersecurity Technologies.
- Directed Energy.
- Highly Automated, Autonomous and Uncrewed Systems (UxS), and Robotics.
- Human Machine Interfaces.
- Integrated Communication Networks Technologies.
- Positioning, navigation, and Timing (PNT) Technologies.
- Quantum information and Enabling Technologies.
- Semiconductor and Microelectronics; and Space Technologies and Systems.
Each CET area includes a set of subfields that describes its scope in more detail. For example, Advanced Computing includes the following subfields: Advanced Supercomputing, including AI Applications, Edge Computing and Devices, Advanced Cloud Services, High-Performance Data Storage and Data Centers, Advanced Computing Architectures, Advanced Modeling and Simulation, Data Processing and Analysis Techniques, and Spatial Computing. Artificial Intelligence includes the following: Machine Learning; Deep Learning; Reinforcement Learning; Sensory Perception and Recognition; Next-Generation AI; Planning Reasoning Decision Making; and Safe and/or Secure AI. For more information on the various subfields for the different areas of CET, please see the following:
- STEM Degree Program List
The Department of Homeland Security (DHS) has created and issued to the public a STEM Degree Program List. This list may be found at the following website:
This list is used to determine whether degrees obtained by F-1 students qualify as a STEM degree. A STEM degree is needed to extend an F-1 student's Optional Practical Training (OPT) period for an additional two years beyond the initial one-year period. This list may be used as a guide by U.S. employers and foreign nationals to determine if education and/or past experience may qualify the foreign national as a STEM professional under EO #14110.
The U.S. government has an interest in retaining those individuals it educates at U.S. colleges and universities, so they and other companies, governments, etc. do not use that knowledge to compete against the U.S. Likewise, the U.S. government also has an interest in retaining foreign nationals who work in STEM occupations. As a result, it is possible that STEM-related occupations may be listed on a revised Schedule A.
- The RFI issued by the DOL on December 21, 2023
While the 2024 Critical and Emergent Technologies List and STEM Degree Program List offer some insight into occupations that may be in a revised Schedule A, it is unlikely that all of the occupations from both lists would be included. Therefore, following the EO #14110's directive that DOL issue a request for information (RFI) within 45 days of October 30, 2023, DOL has had another source – public comments – to help it define (and delimit) occupations for the Schedule A list.
In the RFI issued by the DOL on December 21, 2023, the agency notes that Schedule A has not been comprehensively examined or modified in three decades. DOL's RFI seeks comments from the public on both STEM and non-STEM occupations, including those that may be related to, but not considered STEM occupations, as well as those outside of the STEM arena entirely. This scope suggests that DOL may be interested in significantly revising Schedule A.
The RFI cites a U.S. Department of Defense (DOD) report from 2021, that stated the U.S. is graduating fewer students with STEM degrees as a percentage of population compared to China, and that the U.S. no longer has the most STEM graduates worldwide. The DOD report noted that American students made up approximately 21% (twenty-one percent) of the computer science student body and 19% (nineteen percent) of electrical engineering majors in U.S. universities. The RFI notice also asserted that data from the National Science Board showed that more than one-half of all graduates of engineering, computer science, and mathematics doctoral programs at U.S. universities are foreign born and that the U.S. STEM labor force is aging. Therefore, in order to maintain a strong U.S. STEM workforce, it seems likely that some STEM occupations may appear in a revised Schedule A, with a focus on those occupations that involve computer science, mathematics, and engineering.
The RFI also noted that the National Science Board (NSB) has indicated that new scientific advancements in quantum technologies, space exploration and medical vaccines are changing the world of work and are challenging the traditional framework used to define the U.S. STEM labor force. The NSB stated that there is a skilled technical workforce (STW), which includes occupations that require a high level of technical knowledge, but do not require a bachelor's degree. STW occupations include those who may be employed in a science and engineering (S&E) occupation, an S&E- related occupation, or a non-STEM middle-skilled occupation. The NSB has asserted that a strong U.S. STEM labor force required these middle-skilled occupations, such as in the construction trade, extractive fields, and production. As a result, it is possible that a revised Schedule A may include STW middle-skilled occupations that are not typically considered STEM occupations or in a STEM field, but that require STEM skills.
- U.S. Chamber of Commerce Report of Shortage Occupations
The U.S. Chamber of Commerce (hereinafter "The Chamber") issued a report this year that examined labor shortages among various industries. The Chamber noted that the education and health services sector as well as the professional and business services sector consistently had the highest number of job openings. It also noted that the professional and business services sector spans a broad spectrum of occupations from legal services and scientific research to landscaping workers, cleaners, and waste disposal workers.
The Chamber's report indicated that, while the construction industry has a labor surplus, this does not ensure that all positions will be occupied or that workers be located in regions where the open positions are listed. It also noted that as the U.S. population ages, greater resources will be needed to care for them; thus, it projects great demand for healthcare and pharmaceutical workers. Therefore, the nurse and physical therapist occupations that are currently listed on Schedule A (Group I) will likely remain on any revision.
With respect to the Chamber's report, labor shortages in a given occupations are due to a number of factors (aging workforce, aging population, lower workforce participation, climate change, etc.) This suggests that revisions to Schedule A may include more than just STEM-based occupations or those involving critical and emerging technologies.
- U.S. Bureau of Labor Statistics
One way to determine what may be listed on a revised Schedule A is to examine what occupations may be in decline and will not likely be listed on a revised Schedule A. The DOL's Bureau of Labor Statistics issued a writing that listed the fastest declining occupations.3 Here some of the occupations listed:
Typist
Watch and Clock Repairers
Telephone Operators
Legal Secretaries and Administrative Assistants
Foundry Mold and Coremakers
Loading and Moving Machine Operators
Drilling and Boring Machine Tool Setters
Structural Metal Fabricators and Fitters
Patternmakers, metal, and plastic
Engine and other Machine Assemblers
Model Maker, metal and plastic
Payroll and Timekeeping Clerks
File Clerks
BLS has also provided data to the public which shows the occupations with the most job growth.4 Some occupations that are expected to have the most job growth between 2022 and 2032 (and which may result in a shortage of labor to fill these occupations) are the following:
Nurse Practitioner
Data Scientist
Information Security Analyst
Medical and Health Service Managers
Software Developers
Cooks, restaurants
Substance Abuse, Behavioral Disorder, and Mental Health
Counselors
Financial Managers
Computer and Information Systems Managers
Animal Caretakers
Based on the data from BLS it appears that occupations in healthcare (besides Nurse and Physical Therapist) and computer science occupations appear to be occupations that may be added to Schedule A.
- Indeed.com
The job search website Indeed.com has provided to the public the top twenty-five shortage occupations for 2024.5 According to Indeed.com, the twenty-five shortage occupations in the U.S. are:
Solar Equipment Installer
Wind Turbine Specialist
Personal Care Assistant
Nurse Practitioner
Statistician
Assistant Physiotherapist
Software Developer
Mathematician
Information and Security Analyst
Operations Research Analyst
Forest Fire Inspector
Healthcare Lecturer
Physiotherapist
Nursing Instructor
Janitor
Waiter and Chef
Accountant and Auditor
Landscape Designer
Truck Driver
When you compare those shortage occupations from Indeed.com with those in-demand occupations with the DOL's BLS, there appears to be a pattern emphasizing healthcare, computer science, mathematics, and finance. As a result, any revision to Schedule A will probably include the addition of certain healthcare occupations, as well as occupations involving computer science and mathematics.
What items are included in a Schedule A immigrant visa petition?
If a position for which a U.S. employer wishes to sponsor a foreign national is a Schedule A occupation, the employer is not required to obtain a certified ETA Form 9089 from DOL before filing its Immigrant Petition for Alien Worker (Form I-140). Rather, the U.S. employer may bypass the PERM labor certification process altogether and file Form I-140 with the USCIS. There is considerable time and cost incentive for sponsoring a foreign national for an occupation listed on Schedule A. Advertising costs through the PERM labor certification process can cost the U.S. employer thousands of dollars. In addition, DOL's processing time for a PERM labor application is about one year.
However, while the sponsoring employer does not have to place a series of advertisements to test the U.S. labor market and does not have to wait a year to have the DOL certify an ETA Form 9089 before filing Form I-140, the U.S. employer is still required to obtain a prevailing wage determination (PWD) from the DOL before filing Form I-140. In addition, government regulations at 20 CFR 656.10(d) require the U.S. employer to give notice to U.S. workers and/or collective bargaining representatives (in certain cases) of the job opportunity.
When filing the Form I-140 with the USCIS, the Form I-140 petition will need to include the following:
- Completed Form I-140 petition;
- Filing fee checks of $715.00; $600.00 Asylum Program Fee (or $300.00 if employ 25 or fewer employees), $2,805.00 Premium Processing Fee (Optional);
- Completed ETA Form 9089 (uncertified);
- Prevailing wage determination issued by the DOL;
- 10-day notice of job posting6;
- Supporting documentation, which evidences the foreign national meets the education requirements, experience requirements, special skills requirements, licensure requirements (if any), etc. to perform the job duties for the position.
How will the outcome of the upcoming U.S. Presidential election impact Schedule A?
President Biden's EO #14110 compelled the DOL to examine in a comprehensive manner the occupations that are listed on Schedule A for the first time in three (3) decades. It is possible that if former President Trump is elected to the Presidency, it is remotely possible that he will carry forward what the Biden Administration has started with respect to overhauling Schedule A to address the labor shortage in the U.S. However, most believe this to be unlikely. A second Trump Administration may, however, try to devise a different approach to address the need for talent in the U.S. and/or at least the shortage of labor in certain occupations.
If Vice President Harris is elected President, a Harris Administration will likely carry forward the plan to revise Schedule A in order to address the U.S. labor shortage in certain occupations and to see through the publishing of a final rule for revising the Schedule A occupation list.
Conclusion
While President Biden's EO #14110 is designed to guide the development and deployment of artificial intelligence (AI) through federal agency leadership to ensure the safe and secure development of AI, the section in President Biden's EO to add or revise the list of occupations on Schedule A might have a profound impact on U.S. Green Card sponsorship from the standpoint of cost and time savings. With respect to trying to ascertain what or how many occupations may be added to Schedule A, it appears that DOL may be poised to make substantial additions to Schedule A. If this is the case, then occupations not just in AI but also in emerging and critical technologies, STEM occupations, S&E occupations, S&E-related occupations that typically do not require a Bachelor's Degree to perform the job duties, as well as some non-STEM occupations may be included. With respect to STEM occupations, it seems reasonable to conclude that additional healthcare occupations may be added, as well as certain occupations in computer science, mathematics-based occupations and STW middle-skilled occupations. In addition, it would be reasonable for DOL to review Schedule A with more frequency and vigor in the future in order to revise Schedule A as the U.S. demand for critical labor changes.
Footnotes
1. See: https://www.whitehouse.gov/briefing-room/presidential-actions/2023/10/30/executive-order-on-the-safe-secure-and-trustworthy-development-and-use-of-artificial-intelligence/
2. Note: Currently, Schedule A, Group I lists only two shortage occupations – Physical Therapist and Professional Nurse. Schedule A, Group II only lists aliens of exceptional ability.
3. Note: Data is taken from the Occupational Employment and Wage Statistics program, U.S. Bureau of Labor Statistics. https://www.bls.gov/emp/tables/fastest-declining-occupations.htm
4. Note: Data is taken from the Occupational Employment and Wage Statistics program, U.S. Bureau of Labor Statistics. https://www.bls.gov/emp/tables/occupations-most-job-growth.htm
5. https://uk.indeed.com/career-advice/finding-a-job/work-in-the-usa
6. Even though the U.S. employer is not required to advertise for the offered Schedule A position, the employer is required to give notice to the bargaining representative (if any) of the employer's employees in the occupation in the area of intended employment or to post notice to the employer's employees at the location of employment for ten (10) consecutive business days.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.