The U.S. Department of Labor (DOL) will solicit public input on expanding its list of Schedule A occupations eligible for streamlined immigration processing to include designated jobs in Science, Technology, Engineering, and Mathematics (STEM) fields. The action comes pursuant to the Biden Administration’s Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence, which charges federal agencies to use existing legal authority to expand the ability of highly skilled immigrants with expertise in critical areas to study, stay, and work in the U.S. by modernizing and streamlining visa criteria.

WHAT IS SCHEDULE A?

Most employment-based sponsorship for U.S. permanent resident status requires a U.S. employer to conduct a labor market test and request DOL certification that there are no qualified U.S. workers available for the offered position. Obtaining DOL labor certification entails a costly recruitment campaign, and the process currently takes at least 1.5 years to complete, often longer.   For certain occupations, described in 20 CFR § 656.5 – Schedule A, DOL has predetermined that there are not sufficient U.S. workers who are able, willing, qualified, and available to fill jobs.  Sponsoring employers seeking to fill a Schedule A position may by-pass the labor market test because DOL has pre-certified the labor shortage. Employers may petition directly to U.S. Citizenship and Immigration Services (USCIS) to sponsor an employee for permanent resident status.

Current Schedule A occupations include registered nurses and physical therapists.  The Schedule A list has not been updated in more than 30 years. Updating the Schedule A list does not require Congressional action or legislation.

WHAT DO EMPLOYERS NEED TO KNOW?

DOL is expected to publish additional information seeking comments about the proposed expansion of Schedule A by next month.  U.S. employers and other interested stakeholders will then have an opportunity to comment on the proposed expansion, identifying hard-to-fill, shortage occupations that should be pre-certified. Commentors may suggest any occupation that is hard to fill, and need not limit proposals to technology or STEM positions.  The expectation is that DOL could publish a revised Schedule A list of occupations in the first half of 2024.

Once implemented, employers seeking to sponsor a foreign national for a designated Schedule A occupation will not be required to undertake an extensive recruitment campaign to test the U.S. labor market. However, employers will still be required to obtain a Prevailing Wage Determination from DOL to ensure that hiring a foreign national into the position does not adversely impact wages and working conditions for U.S. workers.  Ideally, employers will be able to more quickly staff hard-to-fill jobs. Foreign nationals employed in STEM occupations will also benefit from getting permanent resident petitions on file with USCIS more quickly.

Gibney will continue to monitor expansion of Schedule A and will provide updates when they become available.

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