U.S. Immigration Development to Watch: The DOL’s Request for Information on Expanding Schedule A Exemption

If Schedule A is expanded, the change could alleviate labor shortages and shave months, if not years, from an arduous PERM recruitment and employment-based green card application process.

Disclaimer: The views and opinions expressed in this article are solely those of the authors and do not necessarily reflect the official policy or position of WERC.

Last October, President Biden issued Executive Order 14110 on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence.” Among many other provisions, EO 14110 announced several actions intended to remove immigration-related barriers that make the U.S. less attractive to world talent in the fields of artificial intelligence and other “critical and emerging technologies.” One instruction commanded the Secretary of Labor to “publish a request for information (RFI) to solicit public input, including from industry and worker-advocate communities, identifying AI and other STEM-related occupations, as well as additional occupations across the economy, for which there is an insufficient number of ready, willing, able, and qualified United States workers.”

Heeding the president’s order, the Department of Labor (DOL) on 15 December 2023 published a request for information (RFI), which invited public comment (by 20 February 2024) on ways to expand an exemption from the standard PERM labor certification recruitment process known as “Schedule A.” If Schedule A is expanded, the change could alleviate labor shortages and shave months, if not years, from an arduous PERM recruitment and employment-based green card application process.

This is not the first time that DOL has been prodded to expand the list of shortage occupations exempt from standard labor certification. In 1990, Congress did just that. It authorized a “Labor Market Information Pilot Program” that would run for two fiscal years. Indeed, DOL published a proposed rule in 1993 listing multiple shortage occupations throughout the United States but never finalized the regulation, thereby causing the pilot program to lapse.

Surprisingly, despite the lengthy list of shortage occupations in the 1993 proposed rule, DOL noted in the RFI that its own data sources and those maintained by the U.S. Census Bureau “do not appear to be sufficient for determining appropriate revisions to Schedule A.” Fortunately, the Institute for Progress (IFP), a nonpartisan think tank focused on innovation policy, has proposed “a transparent, objective, and data-driven method by which the [DOL] can regularly update the Schedule A shortage occupation list.” The proposal also surveyed the shortage-occupations methodology adopted in several countries to suggest ways in which DOL can refresh Schedule A periodically. The IFP is inviting companies to sign on to a collective letter by 15 February (accessible here) conveying to DOL that there is abundant employer demand to use Schedule A if it is updated.

Mobility managers may wish to consider urging their companies to submit individual or trade-group comments to the DOL RFI. Here are various points that might be included in stakeholder comments.

• Aside from listing STEM occupations, comments might include a recommendation that Schedule A be expanded to permit startup owners to qualify for exemption from labor certification. At present, there are numerous obstacles that make it impossible for entrepreneurs to be sponsored for labor certification by a company they founded or otherwise to qualify for employment-based green cards under existing immigration programs.
• Comments might also urge that L-1B intracompany transferees with specialized knowledge be added to Schedule A, given that previously L-1A intracompany managers and executives had been included in the exemption schedule until DOL removed them after Congress created the current “Multinational Executives and Managers” EB-1C first preference green card category in 1990.
• Another comment might call upon DOL to create an alternative to the current PERM-based process for requesting a prevailing wage determination. The current procedure now takes about six months and thus results in delays for just as long before the triggering of a Schedule A “priority date” under the likewise backlogged employment-based immigrant visa quota system. Conceivably, DOL might be urged to incorporate into any Schedule A final rule the existing accelerated process for certifying the prevailing wage under DOL’s H-1B Labor Condition Application regulations. 

In short, the potential expansion of Schedule A is a welcome opportunity not to be missed. Employers would do well to convey their views on existing shortage occupations, especially because, as DOL has acknowledged in the RFI, “employment growth is projected to slow over the next decade [as a result] of slowing population growth and changing demographics.”

Ashlee Drake Berry is a business immigration attorney licensed to practice law in five U.S. jurisdictions. She is currently an attorney at Vialto Law (US) PLLC. Contact her at ashlee.d.berry@vialto.com. 

Mayreni Heredia is a business immigration attorney licensed to practice law in the state of New York. She is an attorney at Vialto Law (US) PLLC. Contact her at mayreni.heredia@vialto.com. 

Angelo Paparelli is a partner with Vialto Law (US) PLLC, licensed to practice law in California, New York, Michigan, and the District of Columbia. Contact him at angelo.paparelli@vialto.com.