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Feb 15 -- RFI deadline extended to May 13, 2024. https://www.federalregister.gov/d/2024-03187

1) Oct 30: Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence

Sec. 5. Promoting Innovation and Competition.
5.1.  Attracting AI Talent to the United States.  

(e)  Within 45 days of the date of this order [i.e., December 15], for purposes of considering updates to the “Schedule A” list of occupations, 20 C.F.R. 656.5, the Secretary of Labor shall publish a request for information (RFI) to solicit public input, including from industry and worker-advocate communities, 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.

https://www.whitehouse.gov/briefing-room/presidential-actions/2023/10/30/executive-order-on-the-safe-secure-and-trustworthy-development-and-use-of-artificial-intelligence/

2) Dec 15 [press release] -- 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.

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 — including industry and worker-advocate communities — to identify artificial intelligence and other STEM-related occupations, as well as additional occupations across the economy where an insufficient number of qualified and available U.S. workers exists.

The RFI provides the public a way to offer input on whether or 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.

Press release: https://www.dol.gov/newsroom/releases/eta/eta20231215-0

3) Dec 21 -- ETA RFI: Labor Certification for Permanent Employment of Foreign Workers in the United States; Modernizing Schedule A to Include Consideration of Additional Occupations in Science, Technology, Engineering, and Mathematics (STEM) and Non-STEM Occupations

The Department of Labor's (Department or DOL) Employment and Training Administration (ETA) is considering revisions to Schedule A of the permanent labor certification process to include occupations in Science, Technology, Engineering and Mathematics (STEM) and other non-STEM occupations and invites employers and other interested parties to comment on this Request for Information (RFI). Submit written comments on or before February 20, 2024.

ETA's Office of Foreign Labor Certification developed this RFI and is publishing it for comment so that the public may provide input, including data, statistical metrics or models, studies, and other relevant information, on how the Department may establish a reliable, objective, and transparent methodology for revising Schedule A to include STEM and other non-STEM occupations that are experiencing labor shortages, consistent with requirements of the Immigration and Nationality Act (INA). The Department wants to ensure that it is striking an appropriate balance between the need to provide U.S. workers notice of available permanent job opportunities and the opportunity to apply for those job opportunities, and, where insufficient U.S. workers are available to satisfy an employer's need for permanent labor, the need to provide employers access to foreign labor through effective administration of the permanent labor certification program. Information received from the public will help 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. . . .

Section 212(a)(5)(A) of the INA, 8 U.S.C. 1182(a)(5)(A), deems inadmissible certain foreign nationals who seek to enter the United States for purposes of employment, unless the Secretary of Labor first certifies that: (1) there are insufficient U.S. workers at the place where the foreign worker would be employed who are able, willing, qualified and available for the job the foreign worker seeks; and (2) employment of the foreign worker would not adversely affect the wages and working conditions of U.S. workers in similar jobs.

In an effort to address the workforce needs of employers at a time when the U.S. economy was rapidly expanding, the Department first established a mechanism in the mid-1960s by regulation for pre-certifying job vacancies of occupations for which U.S. workers were in short supply nationwide, which became known as Schedule A of the permanent labor certification program. Schedule A is set forth in the Department's permanent labor certification regulations at 20 CFR 656.5 and enumerates a list of occupations for which the Department has predetermined that the statutory requirements have been met. The occupations currently listed in Schedule A are divided into two groups. Group I consists of physical therapists and professional nurses; Group II consists of occupations that require foreign workers to possess exceptional ability in the sciences, arts, or performing arts. An employer seeking to hire foreign nationals in shortage occupations on Schedule A is able to forego the need to test the labor market normally required under the Department's process for permanent labor certification, is able to bypass filing an application for permanent employment certification with the Department, and instead files an uncertified application for permanent employment certification directly with U.S. Citizenship and Immigration Services (USCIS) at the time the employer files its immigrant visa petition, or Immigrant Petition for Alien Workers, Form I–140. . . .

In part because Schedule A has not been comprehensively examined or modified in approximately three decades, and in part because Schedule A by definition allows employers to bypass filing an application for a labor certification, the Department does not have comprehensive data on how employers utilize Schedule A and the types of work performed thereunder.

In order to help gather evidence about how to determine whether to expand or alter Schedule A, the Department is seeking information from the public that will help inform this decision. In this RFI, the Department provides an overview of key research, data, and trends related to STEM occupations. We also welcome comments from the public on non-STEM occupations, including those that may be related to but not traditionally considered STEM occupations as well as those that are outside of the STEM arena but nonetheless may also face labor shortages.

Anecdotal evidence and industry research suggest that economic and labor market conditions have changed for certain industries and occupations that rely on foreign workers and various visa programs, especially in the area of STEM occupations, including occupations in the field of artificial intelligence (AI). . . .

In evaluating the utility of expanding Schedule A to include STEM occupations, the Department invites the public to provide input on the appropriate data sources and methods for determining whether labor shortages exist, whether Schedule A should be used to alleviate any labor shortages in STEM occupations should it be determined from these data sources and methods that such shortages exist, and if so, how the Department could establish a reliable, objective, and transparent methodology for identifying STEM occupations that are experiencing labor shortages. Additionally, the Department invites the public to provide input on whether to limit examination of STEM only to those OEWS occupations used in most of the recent BLS publications, or whether the STEM occupations should be expanded to include additional occupations that cover STW occupations, and whether it is justifiable to find for each such occupation that there are not and will not be sufficient U.S. workers ready, willing, able and qualified to perform positions in those occupations nationwide, considering significant government and private sector investment in STEM education and research to enhance STEM labor market participation among U.S. workers generally and among underrepresented groups specifically. Similarly, the Department encourages the public to provide input as to whether there are non-STEM occupations which should be added to Schedule A and, if such occupations exist, to provide the data sources and methods of determining such shortages exist. This input will assist the Department in fulfilling its obligation under the INA to ensure the employment of foreign workers will not adversely affect the wages and working conditions of U.S. workers. Information received from the public will help 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.   

The Department invites general comments and suggestions concerning: (A) whether any STEM occupations should be added to Schedule A, and why; and (B) defining and determining which occupations should be considered as falling under the umbrella of STEM, and why. . . . Accordingly, the Department invites the public to answer one or more of the following questions in their submissions:

1. Besides the OEWS, ACS, and CPS, what other appropriate sources of data are available that can be used to determine or forecast potential labor shortages for STEM occupations by occupation and geographic area?

2. What methods are available that can be used alone, or in conjunction with other methods, to measure presence and severity of labor shortages for STEM occupations by occupation and geographic area?

3. How could the Department establish a reliable, objective, and transparent methodology for identifying STEM occupations with significant shortages of workers that should be added to Schedule A?

4. Should the STEM occupations potentially added to Schedule A be limited to those OEWS occupations used in most of the recent BLS publications, or should the STEM occupations be expanded to include additional occupations that cover STW occupations?

5. Beyond the parameters discussed for STW occupations, should the Department expand Schedule A to include other non-STEM occupations? If so, what should the Department consider to establish a reliable, objective, and transparent methodology for identifying non-STEM occupations with a significant shortage of workers that should be added to or removed from Schedule A?

RFI: https://www.federalregister.gov/d/2023-27938

4) Resources:

Congressional Research Service, Permanent Employment-Based Immigration: Labor Certification and Schedule A, December 20, 2023 https://crsreports.congress.gov/product/pdf/IF/IF12555

Lindsay Milliken, Jeremy Neufeld, and Greg Wright, "Help Wanted: Modernizing the Schedule A Shortage Occupation List -- A new data-driven method to identify gaps in the labor market," Institute for Progress, December 14, 2023 https://ifp.org/schedule-a/

Lindsay Milliken, Jeremy Neufeld, and Greg Wright, "How immigration can fix labor shortages — without hurting U.S. workers," Washington Post, December 14, 2023 https://www.washingtonpost.com/opinions/2023/12/14/labor-shortages-immigration-schedule-a/

Helen Dempster and Lindsay Milliken, "Shortages with Data: How the Department of Labor Can and Should Update Schedule A," Center for Global Development, December 14, 2023 https://www.cgdev.org/blog/helping-tackle-labor-shortages-data-how-department-labor-can-and-should-update-schedule

Cecilia Esterline, "A roadmap for preserving American advantage in the global fight for talent," Niskanen Center, September 6, 2023 https://www.niskanencenter.org/a-roadmap-for-preserving-american-advantage-in-the-global-fight-for-talent/

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