The Program Electronic Review Management (PERM) system, which is the first step for obtaining a green card, requires that U.S. employers undergo a labor market test before a position can be offered to a foreign worker.1 This test is required by the U.S. Department of Labor (DOL) to establish that there are not able, willing, qualified, and available U.S. workers to accept the job opportunity, and that hiring foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.2
For certain occupations where DOL has predetermined that there is a nationwide shortage, employers can bypass this test, obtain a prevailing wage determination, and file the employment-based immigrant petition directly with U.S. Citizenship and Immigration Services (USCIS). These occupations are referred to as Schedule A occupations.3 This list was first established by regulation in the mid-1960s and has been reviewed and modified at regular intervals to reflect changing economic and labor market conditions. Currently, DOL has designated two groups of occupations under Schedule A: Group I - registered nurses and physical therapists, and Group II - beneficiaries with exceptional ability in the sciences or arts (except performing arts). DOL defines a science or art as any field of knowledge or skill in which colleges and universities commonly offer specialized courses leading to a degree.4 A separate subset of Group II includes beneficiaries with exceptional ability in performing arts.5
On October 30, 2023, the Biden administration issued an "Executive Order (EO) on the Safe, Secure, and Trustworthy Development and User of Artificial Intelligence." One of the EO's goals is to attract AI talent to the United States.6 In addition to proposing the streamlining of visa petition processing times and facilitating the continued availability of visa appointments, item 5.1e of the EO directs the Secretary of Labor to publish a request for information to solicit public input that identifies "AI and other-STEM related occupations..."7 that will be considered for possible inclusion in Schedule A. This proposed extension of Schedule A, Group II, occupations to include STEM and AI-related jobs will, if implemented, facilitate the entry of many of STEM professionals into the United States. On December 15, 2023, DOL published a request for information (RFI) to solicit expert input on which Science, Technology, Engineering, and Mathematics (STEM) and non-STEM occupations should be included in the list.8 The deadline for providing this input is May 13, 2024.9
Well before the administration's EO, many business groups and professional associations endorsed Schedule A expansion. For example, in June 2023 American Immigration Lawyers Association (AILA) and Partners sent a letter urging DOL to utilize its legal authority and update Schedule A to reflect the labor needs of today's economy. The letter states: "DOL has not updated Schedule A at all since 1991. The list remains frozen in time, completely unconnected to the needs of today's labor market. There are an immense number of jobs that exist today, which did not exist in the early 1990s."10
Likewise, Google has urged the U.S. government to expand Schedule A occupations to include AI and cybersecurity positions. In a recent article, Karan Bhatia, head of government affairs and public policy at Google, stated that the U.S. could lose out on valuable AI and tech talent if some of its immigration policies are not modernized, Google says in a letter sent to the Department of Labor.11 "There's wide recognition that there is a global shortage of talent in AI, but the fact remains that the US is one of the harder places to bring talent from abroad, and we risk losing out on some of the most highly sought-after people in the world," she said.12
Expanding the list of Schedule A occupations to include more AI and STEM-related occupations will make it easier for U.S. employers to fill these persistent talent gaps. It will also reduce processing times as Schedule A does not require a labor market test, one of the key stages in PERM and which can take, along with Form 9089 processing, up to 18 months to process. As critics have long asserted, the PERM process has become cumbersome and time-consuming, taking approximately two to three years to complete the process compared to anticipated 45-60 days as per 2005 Preamble to PERM Final rule.13
However, U.S. employers need to be aware that, while under Schedule A the DOL waives the labor market test normally required under the PERM certification processing and allows employers to bypass filing an application for permanent employment certification (Form 9089) with DOL, those seeking to hire a foreign national for a Schedule A occupation are still required to obtain a valid Prevailing Wage Determination (PWD) from DOL and submit an uncertified PERM labor certification application (Form 9089) directly to USCIS with an I-140 petition.14 While a Schedule A petition is more cost-effective and will reduce some of the processing times, the employer must still obtain a PWD which alone takes more than 10 months for DOL to process. Moreover, Schedule A applicants will still need to meet the eligibility requirements including that the offer must be for full-time employment and that the applicant will be paid at least the minimum prevailing wage.15 The employment -based green cards are also a subject to statutory annual visa limitations and priority dates cut offs published in the U.S. Department of State's monthly Visa Bulletin.16
As the DOL's RFI indicates, furthermore, given the accelerating evolution of occupations in the U.S. labor market with respect to STEM- and AI-related occupations, the DOL has been challenged to determine where labor shortages actually exist in these fields. Hence, the RFI ultimately seeks to "establish a reliable, objective, and transparent methodology for identifying STEM occupations that are experiencing labor shortages."17 But, considering that there has not been any revisions to Schedule A since 2004, this could just as well as lead to some occupations losing Schedule A designation.18 As the Federation of American Scientists state: "if occupations are removed from Schedule A, foreign workers in those fields may face longer delays and increased difficulty in obtaining a Green Card as their employers would need to undertake the Labor Certification process to demonstrate that there are not enough qualified U.S. workers for the job."19 Moreover, eliminating labor test market requirement may contribute to U.S. workers' concerns about job security, fairness of job opportunity, and economic stability.
We should approach the Schedule A extension with cautious optimism. It certainly holds out the promise an accelerated process for getting foreign talent in the U.S.; however, it is still tied firmly to such requirements as PWDs and labor certifications. It will open up many more occupational fields to Schedule A designation, but how the boundaries between STEM and non-STEM employment will be drawn in a constantly evolving labor market remains to be seen.
Conclusion
Expanding the list of Schedule A occupations has the potential to have far-reaching implications for the PERM process and the broader immigration system. While it can offer benefits such as streamlining hiring processes, addressing labor shortages, and promoting economic growth, there are also potential drawbacks, including concerns about job displacement and the risks of exploitation.
FGI will continue to actively monitor these proposed changes and will provide an update once new rules and policies have been formally implemented.
Footnotes
1. 20 CFR § 656.17
2. 20 CFR § 656.1(a) and https://flag.dol.gov/programs/perm
3. U.S. Department of Labor. Employment and Training Administration. 20 CFR Part 656. RIN 1205-AC15. "Labor Certification for Permanent Employment of Foreign Workers in the United States; Modernizing Schedule A to Include Consideration of Additional Occupations in Science, Technology, Engineering, and Mathematics (STEM) and Non-STEM Occupations.": https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA%20RIN%201205-AC16%20Schedule%20A%20PERM%20RFI%20with%20Disclaimer.pdf
4. 20 CFR 656.5(b). The beneficiary, however, does not need to have studied at a college or university in order to qualify for Schedule A, Group II. See 20 CFR 656.5(b)(1).
5. https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20240410-ScheduleA.pdf
6. The White House. 'Executive Order (EO) on the Safe, Secure, and Trustworthy Development and User of Artificial Intelligence," section 5, October 30, 2023: 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/
7. Ibid.
8. Federal Register. "Labor Certification for Permanent Employment of Foreign Workers in the United States; Modernizing Schedule A to Include Consideration of Additional Occupations in Science, Technology, Engineering, and Mathematics (STEM) and Non-STEM Occupations." https://www.federalregister.gov/documents/2024/02/15/2024-03187/labor-certification-for-permanent-employment-of-foreign-workers-in-the-united-states-modernizing
9. U.S. Department of Labor. "PERM Schedule A RFI": https://www.dol.gov/agencies/eta/foreign-labor/perm-schedule-a-rfi
10. AILA Doc. No. 23062916. (Posted 6/29/23) https://www.aila.org/library/letter-to-dol-on-updating-schedule-a-group-i
11. Emilia David. "Google urges US to update immigration rules to attract more AI talent," The Verge, May 2024: https://www.theverge.com/2024/5/1/24146053/google-ai-talent-immigration-schedule-a
12. Ibid.
13. Stuart Anderson. "Labor Department's PERM Program Failing Immigrants and Employers." Forbes, April 23, 2024: https://www.forbes.com/sites/stuartanderson/2024/04/23/labor-departments-perm-program-failing-immigrants-and-employers/?sh=21eeb7b52119
14. U.S. Citizenship and Immigration Services, Policy Manual, Vol. 6, Chapter 7, C. Schedule A Occupations: https://www.uscis.gov/policy-manual/volume-6-part-e-chapter-7
15. U.S. Citizenship and Immigration Services [USCIS]. Policy Manual, vol. 6, part E, chapter 7: https://www.uscis.gov/policy-manual/volume-6-part-e-chapter-7
16. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
17. U.S. Department of Labor, Employment and Training Administration, 20 CFR part 656 [RIN 1205-AC16], p. 16: https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA%20RIN%201205-AC16%20Schedule%20A%20PERM%20RFI%20with%20Disclaimer.pdf
18. DOL, Ibid.
19. Divyansh Kaushik. "Unlocking American Competitiveness: Understanding the Reshaped Visa Policies Under the AI Executive Order." Federation of American Scientists, FAS.org: October 30, 2023.
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