A Biden administration immigration reform aimed at making it easier for high-skilled talent to gain employment-based green cards appears dead. The Department of Labor will no longer pursue its proposal to add more occupations to Schedule A, which could have exempted many individuals in science and engineering occupations from a costly and time-consuming labor certification process when pursuing permanent residence. It appears unlikely the incoming Trump administration will take up the initiative.
An Immigration Proposal From DOL That Went Nowhere
On December 15, 2023, the Department of Labor requested information from the public in a formal notice. “The U.S. Department of Labor today published a Request for Information so the public can provide input on whether to revise the list of Schedule A job classifications that do not require permanent labor certifications,” according to DOL. “Guided by President Biden’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, the department invites input from the public . . . to identify artificial intelligence and other STEM-related [science, technology, engineering and math] occupations, as well as additional occupations across the economy where an insufficient number of qualified and available U.S. workers exists.”
DOL noted that the information request could inform “how the department may establish a reliable, objective and transparent methodology to respond to national labor shortages, consistent with the requirements of the Immigration and Nationality Act.”
The Department of Labor has not updated Schedule A since 2004. As the U.S. Chamber of Commerce noted in its comments to DOL, “Only physical therapists, professional nurses and immigrants of exceptional ability in the arts, sciences, and performing arts” are currently listed on Schedule A and exempt from labor certification.
“A modernized Schedule A that is routinely updated to reflect the conditions of American economy would not only benefit many companies seeking to meet their workforce needs, but it would also help the Labor Department make better use of its limited resources as it carries out its statutory obligations to ensure that the admission or continued presence of foreign national workers in the U.S. does not undermine the interests of similarly situated U.S. workers,” according to the U.S. Chamber of Commerce.
The Chamber said DOL’s lack of action in updating Schedule A for two decades was “divorced from reality,” and urged the department to “expeditiously begin the process of publishing a notice of proposed rulemaking that will update Schedule A to reflect U.S. economic conditions today.”
However, on February 15, 2024, rather than “expeditiously begin the process” of publishing a proposed rule, DOL extended the Request for Information comments deadline to May 13, 2024. After that, DOL engaged in no further activity on Schedule A the public could discern.
“Given that DOL has not yet issued a Notice of Proposed Rulemaking for Schedule A, it is not possible for this administration to finalize the Schedule A Rulemaking,” said Shev Dalal-Dheini, senior director of government relations at the American Immigration Lawyers Association.
“After soliciting public feedback in December 2023 on the proposed expansion of Schedule A, DOL set an August 2024 target date to complete its review and analysis of the comments received,” noted the Fragomen law firm in an advisory. “However, DOL has now moved the initiative to its long-term agenda, with the next action and associated target date labeled as undetermined, suggesting that the agency is no longer actively pursuing this initiative.”
Disappointment Over DOL’s Inaction On The Immigration Reform Initiative
High-skilled foreign nationals, employers and attorneys are unlikely to be pleased with the Department of Labor’s lack of action on Schedule A. “This is as disappointing as it is unsurprising,” said Jon Baselice, vice president of immigration policy at the U.S. Chamber of Commerce. “DOL’s actions ever since the Request for Information announcement were unenthusiastic, to say the least, and it’s a shame because modernizing the Schedule A occupation list could have really benefited many American companies and out economy as a whole.”
“Moving Schedule A to the long-term agenda does seem like a missed opportunity for more efficient processing by DOL for occupations,” said William Stock of Klasko Immigration Law Partners. Stock does not know if DOL “may have seen something in the data that convinced them blanket certifications of occupations by regulation, which would have taken new regulations to change, wasn’t responsive enough to the workforce needs of the economy.”
Otieno B. Ombok, co-leader of the immigration practice group at Jackson Lewis, also views the Department of Labor’s inaction as a missed chance. “It is a big disappointment that this initiative is now dead,” he said. “We had hoped the Biden administration would complete this review and announce changes by January 20 before the Trump administration comes in.”
The Department of Labor website lists 468 days as “the average number of days to process PERM [permanent labor certification] applications” for an analyst review, about the time it would take for teams to play three seasons in the NFL. For an “audit review,” the current processing time is 496 days. Obtaining a Prevailing Wage Determination, the first step in the process, usually takes an additional six to eight months and recruitment can last two to three months. “The entire PERM process can take two to three years” or potentially longer, according to Ombok.
Krystal Alanis, a partner at Reddy Neumann Brown PC, notes that an individual in an occupation listed on Schedule A would not need to wait more than a year for labor certification. That exemption “would allow foreign nationals to obtain an approved I-140 faster to lock in their priority date [for obtaining permanent residence] and utilize the approved I-140 to extend their H-1B status beyond the six-year limit.” She said the faster processing of an EB-2 [employment-based second preference] or EB-3 petition through Schedule A would “reduce the chance of a missed adjustment of status filing opportunity if a foreign national’s priority date is current.”
“Unless the Trump administration introduces reforms in this area, it means U.S. employers will continue to contend with the laborious and time-consuming PERM labor certification process for STEM-related occupations and other occupations for which there is a national shortage in the United States,” according to Ombok.
In Donald Trump’s first term, the Department of Labor’s most significant employment-based immigration initiative did not focus on streamlining the process. Instead, DOL published a rule aimed at pricing H-1B visa holders and employment-based immigrants out of the U.S. labor market by inflating the minimum wage that employers must pay.
“This announcement means U.S. employers will not receive the much-needed relief they need,” said Otieno B. Ombok, “particularly in the hiring and long-term retention of foreign-born professionals in STEM occupations.”
