AI Order Spurs Call for More Access to Easier Green Card Process

Industry groups and immigration advocates are urging the US Labor Department to exempt a wide swath of occupations from requirements for sponsoring foreign workers for permanent residency as the agency considers revisiting those rules in response to an executive order on artificial intelligence technology.

Microsoft Corp., for example, told the DOL that the agency should “pre-certify” a broad range of science, technology, engineering, and mathematics positions as having labor shortages in an acknowledgment of how job roles in the modern economy can be interdisciplinary and span several classifications.

Foreign language, special education, and English as a second language teachers in K-12 schools also should be exempt from labor market tests before employers can sponsor workers for green cards, the Chicago Public Schools said.

And a looming shortage of pharmacists counsels in favor of adding those jobs to occupations that are “pre-certified” as having shortages of US workers that allow more streamlined hiring of foreign workers, the American Hospital Association told the agency.

The comments submitted ahead of the May 13 deadline for feedback on revisions to DOL’s “Schedule A” of designated occupations with known labor shortages show how workforce difficulties affect a range of industries well outside of the artificial intelligence and emerging tech fields that President Joe Biden identified in his executive order last October.

“The demand for talent is so significant, employers need every avenue possible to attract and keep that available talent,” said Dane Linn, senior vice president of corporate initiatives at the Business Roundtable, a trade group representing CEOs at major US employers.

PERM Process

Expanding the Schedule A list isn’t seen as a panacea—overall green cards would remain limited by statutory caps. But it would offer more employers the opportunity to complete the process for sponsoring workers more quickly and allow international workers to secure benefits like job portability or employment authorization for their spouses.

Employers say both are needed to keep critical workers in the US.

Growing wait times to secure labor certifications at the DOL have also put a spotlight on the designated occupations list. Before companies can seek a green card on behalf of a foreign worker—including current employees on temporary visas—they must complete the permanent labor certification, or PERM, process.

Enacted through regulation, PERM is how the DOL carries out Immigration and Nationality Act requirements for the agency to determine that sufficient US workers aren’t able or willing to fill those positions, or that US workers’ wages aren’t adversely affected by hiring foreign workers before an immigrant petition can be obtained.

To submit a PERM application, employers must first advertise the position to US workers with a DOL-approved prevailing wage, the average pay for similar workers in an occupation in a given area—which itself can take several months to obtain. Securing PERM approval used to take months for employers, but now exceeds 800 days on average.

That’s a result in part of an increased workload at the agency, which doesn’t charge fees for labor certifications. Critics say if DOL can’t speed up processing times, it should exempt more positions from the PERM process.

Overdue Update

The last substantive update to the list of occupations exempted from those PERM requirements came nearly three decades ago. Schedule A now includes two occupations—professional nurses and physical therapists—and a second category includes immigrants with exceptional ability in the sciences or arts.

In response to Biden’s order, the DOL requested public input late last year, originally designating Feb. 20 as the comment deadline. It was later extended to May 13.

The responses to the request for feedback illustrate how agency’s PERM regulations are seen as a hindrance to filling roles with essential talent.

Avoiding the PERM process could potentially save companies a year or more before they can petition US Citizenship and Immigration Services for an immigrant worker, commenters said.

In that vein, the Business Roundtable called for the DOL to update Schedule A occupations more regularly using a data-driven analysis of the labor market.

Despite worsening worker shortages across industries, there’s no requirement for the department to update the list at all, said Cecilia Esterline, an immigration research analyst at the Niskanen Center, a think tank that focuses on bipartisan solutions for issues like immigration reform.

And disagreements among economists over how to identify labor shortages have contributed to the long wait between revisions to Schedule A, she said.

After the closing of the comment period, the DOL will review comments “to inform decisions regarding whether or how to improve Schedule A and ensure that its purpose in responding to national labor shortages is more effectively met,” a spokesperson said via email.

‘Same Proof’

For employers that often seek workers on employment-based green cards to fill jobs, getting new occupations added to the list would avoid having to show “the same proof again and again when DOL already knows a labor-shortage exists,” Esterline said.

Expanding the list would also help the agency reduce the time to complete the PERM process, which now takes an average of 393 days—not counting the additional wait time to secure a prevailing wage determination for the position.

Previous updates to Schedule A used unemployment rates for occupations, training times for new hires, as well as total PERM applications for a given occupation, the group noted in its comments.

The Roundtable urged the DOL to adopt a model that uses data from private-sector groups as well as nonprofit and academic institutions to update the list.

But the timing of the information request and a required public comment period on any proposed regulations make it hard to imagine revisions to Schedule A will happen before the Biden administration’s term ends in January, said Divyansh Kaushik, vice president at consulting firm Beacon Global Strategies who focuses on emerging technologies and national security.

Even so, the just-completed comment process could offer valuable insight into how the DOL should eventually establish a methodology for revising Schedule A occupations, he said.

“That will help an administration figure out how to go about identifying these shortage occupations in the future,” Kaushik said.