DOL Proposal to Update Schedule A Occupations
Overview
The Department of Labor (DOL) has announced that it is considering expanding the list of predetermined occupations for Schedule A Designation petitions. DOL is requesting comments on broadening the list of occupations to include additional STEM occupations and non-STEM occupations.
Background
One of the most common paths to an employment-based green card is through the permanent labor certification process (PERM). This process requires a labor market test, and employers must go through a lengthy process that is regulated by the DOL. However, for certain occupations, DOL has predetermined there are not enough US workers who are able, willing, qualified, and available. These occupations are referred to as Schedule A occupations.
For Schedule A occupations, DOL has predetermined that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of noncitizens in those occupations. Therefore, no labor market test is required. The employer must still obtain a Prevailing Wage Determination from DOL and comply with a notice requirement to notify potentially impacted employees. However, the petition is filed directly to US Citizenship and Immigration Services (USCIS) as part of a Form I-140 Immigrant Petition for Alien Worker.
The following are current Schedule A occupations:
Group I – physical therapists and professional nurses; and
Group II – immigrants of exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts.
The list of Schedule A occupations was first established in the mid-1960s by regulation for pre-certifying job vacancies of occupations for which US workers were in short supply nationwide.[1] The occupational listings have since been reviewed and modified at regular intervals to reflect changing economic and labor market conditions; however, the last revision occurred in 2004, and did not add any specific occupations.
Based on “anecdotal evidence and industry research,” DOL has determined that the list of Schedule A occupations may need to be revised.
Proposed Updates to Schedule A Designation
DOL recognizes that economic and labor market conditions have changed for certain industries and occupations that rely on foreign workers and various visa programs, especially in the area of STEM occupations.[2] Data from the Department of Defense and the National Science Board (NSB) reveal that more than half of all graduates of engineering, computer science, and mathematics doctoral programs at US universities are foreign-born, as universities are finding a significant shortfall of US candidates for those programs.[3]
Additional research was conducted to determine how the STEM workforce can be expanded. Findings included the skilled technical workforce (STW), which includes occupations that require a high level of knowledge in a technical domain but do not require a Bachelor’s degree. The NSB has since suggested broadening the definition of STEM to include these STW workers employed in science and engineering, or science and engineering-related occupations, along with other non-STEM middle-skill occupations such as construction, extraction, and production.
DOL is seeking comments on the proposed expansion of Schedule A. Below are DOL’s main requests from the public to determine whether they should expand Schedule A Designations:
Provide appropriate sources of data and available methods to determine which STEM occupations are experiencing a labor shortage.
Whether STEM occupations should be expanded to include occupations within STW, which do not require a Bachelor’s degree.
Whether Schedule A should include other non-STEM occupations that are facing labor shortages.
DOL will review responses once the comment period has ended.
Mintz will continue to actively monitor these proposed changes and will provide an update once new rules and policies have been formally implemented.
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