Updating Schedule A Could Relieve Labor Shortages

​President Joe Biden's recent executive order seeking to manage the implementation of artificial intelligence contains a measure that could be the key to addressing talent scarcity in the U.S.

In addition to a range of safety and security objectives around AI, the order includes initiatives designed to attract and retain foreign nationals with AI and other emerging technology skills.

One of the order's directives is for the Department of Labor (DOL) to consider expanding the Schedule A list of occupations.

"Schedule A is a list of occupations where the DOL has in essence predetermined a shortage exists in the labor market," said Dawn Lurie, senior counsel in the Immigration Practice Group of Seyfarth's Washington, D.C., office. "For occupations on this list, U.S. employers may bypass the labor market test that is currently required to sponsor foreign workers for green cards."

The DOL is expected next month to issue a request for information and solicit public input about possible additions to the Schedule A list. The agency will inquire about "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."

Lurie said that an expansion of the DOL Schedule A list of occupations "would be significant."

Overdue Update

Originally introduced in 1965, the Schedule A list has for decades been limited in practice to nurses and physical therapists. The occupations on the list have not been updated since 1991, and therefore do not reflect the current labor shortages affecting the country, said Cecilia Esterline, an immigration research analyst at the Niskanen Center in Washington, D.C.

Esterline explained that employers hiring for a Schedule A designated occupation "can largely bypass the requirement to demonstrate that an exhaustive headhunt has failed to turn up a qualified employee domestically, saving them a minimum of six months. All petitions are still evaluated to ensure the positions and employees meet the original requirements of the program."

Employers typically have to wait six to eight months to obtain a prevailing wage determination, and the request for a labor certification can take just as long, experts agree.

"Updating Schedule A would relieve this tension by expediting the arrival and retention of critical workers while reducing the workload at a backlogged DOL, where applications would otherwise languish for months," Esterline said.

"It's important to note that updating Schedule A will not increase the number of available visas," she said. "Instead, it would enable DOL to proactively determine the types of businesses and occupations that most need foreign labor, ensuring that a larger share of our limited visas could be utilized to fill the most urgently needed roles."

Experts believe that DOL should add several occupations to Schedule A, including a variety of emerging technology roles and those supporting industrial growth, such as semiconductor and electronics engineers and other specialized STEM occupations.

Esterline said that the Schedule A list could also be updated with nontechnical industries experiencing ongoing, severe labor shortages, such as physicians, truck drivers and teachers.

"Since the Secretary of Labor already has full authority to update Schedule A, it would not require congressional involvement—making it, in theory, a relatively simple overhaul," she said.

"It's this relative simplicity that makes the 30-year inactivity so jarring. The U.S. labor market undergoes dramatic enough changes in the short run to warrant a refresh of the Schedule A occupation list, let alone three decades."

Lurie said that the directive to consider updating Schedule A could open the possibility for a systematic protocol for regularly reviewing and assessing the approved occupations on the list to better meet the demands and needs of the labor market.