Labor Department Plans to Expand Schedule A Occupations, Potentially Waiving PERM for STEM Green Card Applicants
The American Immigration Council and Gibney law firm report that the Labor Department, responding to President Biden's executive order, will soon seek public comment on adding certain STEM occupations to Schedule A to attract AI talent. The article explains the PERM process and exceptions, notes Schedule A hasn't been updated since 1991, and says changes need no congressional authorization.
The American Immigration Council and New York immigration law firm Gibney say the Labor Department will soon seek public comment on adding some STEM occupations to the Schedule A list. The move responds to President Biden's October 30 executive order and is mainly aimed at attracting AI talent.
For most employment-based immigrants, there is a preliminary step in the green card process: they must complete a labor market test and apply to the Department of Labor for a PERM labor certification, with exceptions such as EB1, NIW, and investor immigration. Simply put, it means proving that you are indispensable for the position and that your employment will not take jobs away from Americans. This test not only costs money but is also frustratingly time-consuming—currently estimated to take at least 18 months.
However, there are exceptions: if the position is on the Department of Labor's Schedule A list, no PERM is required. This is because the Department of Labor has already determined in advance that there are not enough American workers capable of filling these positions, so hiring foreign workers will not adversely affect the local labor market.
Currently, Schedule A covers only two categories: physical therapists and professional nurses; and outstanding individuals in the sciences and arts. For the latter, the requirements are somewhat similar to the EB1 extraordinary ability criteria—if you meet the EB1 conditions, not only is labor certification waived, but even employer sponsorship is not required.
The Department of Labor is expected to publish a proposal to add occupations to Schedule A next month, at which point the public will have an opportunity to comment. After the comment period ends, the Department of Labor may issue a revised Schedule A list in the first half of 2024. Once the additions take effect, affected occupations will be able to submit green card applications more quickly and without the need for PERM labor certification.
The history of Schedule A dates back to the 1960s, and its most recent update was in 1991. In the 30 years since then, the U.S. labor market has undergone significant changes.
The Department of Labor can add or modify Schedule A without congressional authorization or new legislation, providing the Biden administration with a convenient tool to enhance its appeal to specific foreign talent even without comprehensive immigration reform.
