The U.S. Department of Labor Building in Washington, D.C.

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.”

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.”

Consequences of DOL’s Inaction

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. This means that 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.

Conclusion

The Department of Labor’s failure to update Schedule A will have significant consequences for high-skilled foreign nationals, employers, and the U.S. economy. The labor certification process will remain lengthy and complex, making it difficult for U.S. employers to hire and retain foreign-born professionals in STEM occupations. The incoming Trump administration is unlikely to take up the initiative, leaving U.S. employers with few options to address the shortage of skilled workers in the country.

FAQs

Q: What is Schedule A?

A: Schedule A is a list of occupations that do not require permanent labor certifications.

Q: Why did the Department of Labor fail to update Schedule A?

A: The Department of Labor extended the Request for Information comments deadline to May 13, 2024, and then engaged in no further activity on Schedule A the public could discern, making it unlikely that the administration will finalize the Schedule A Rulemaking.

Q: What are the consequences of DOL’s inaction?

A: The labor certification process will remain lengthy and complex, making it difficult for U.S. employers to hire and retain foreign-born professionals in STEM occupations.

Q: Will the Trump administration take up the initiative?

A: It appears unlikely that the incoming Trump administration will take up the initiative to update Schedule A.