The Schedule A list of occupations that do not require the employer to conduct a labor market test (a PERM labor certification) as part of a green card application process has not been updated in at least 20 years. Almost a year ago, in December 2023, the Department of Labor (DOL) issued a Request for Information asking for public comment on how to possibly expand the Schedule A list. More than 1,000 comments were submitted by the close of the comment period on May 13, 2024. To date, there still has been no response from the DOL.
The government has already concluded that there are insufficient numbers of qualified U.S. workers available to fill openings in the Schedule A occupations, which have until now been limited to physical therapists, professional nurses, and immigrants of exceptional ability in the sciences or arts. This list is clearly outdated given current labor shortages, especially in STEM fields. The STEM employment gap is growing, particularly in technology and engineering. Indeed, the top 20 occupations where companies have been sponsoring foreign nationals for green cards through the typical long and complex PERM process include software developers, engineers, computer systems analysts, and statisticians.
While new Schedule A occupations could be suggested to the DOL, the agency’s call for input was mostly focused on methodology. For instance:
- What sources of data should be used to establish unmet need?
- How can one determine the severity of shortages in various fields?
Many employers are anxiously awaiting the DOL’s response to comments. The U.S. Chamber of Commerce has particularly noted:
- The importance of updating the Schedule A to reflect current economic conditions;
- The need for periodical updating of the list; and
- The importance of updating the list to help businesses, the economy, and American workers.
To cut down on the current and expected labor shortages in STEM occupations, employers can consider geographic location, training, and developing a talent pipeline. Another, faster method to bridge the labor gap would be through employment of individuals from countries that are producing more workers with the necessary skills. Being able to bring those workers to the United States and sponsor them for green cards is particularly important for attracting and maintaining those workers.
Expanding the Schedule A list would be an efficient way to get this done while still focusing only on occupations where there clearly are not enough U.S. workers available to fill those jobs.
Jackson Lewis attorneys will continue to monitor the situation and report any response from the DOL as soon as it occurs.
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