Executive Order on AI and STEM Occupations Could Eliminate the Need for PERM Labor Certification for Many Workers
The Executive Order Would Declare AI and STEM-related Occupations to be Shortage Occupations
The White House’s October 30 executive order, “Charting a Path Forward for American Leadership in Artificial Intelligence,” is intended to show a commitment to American technological development, and could result in important changes to immigration rules for obtaining permanent residence (“green card”) for foreign workers. Specifically, the change would add “AI and other STEM-related occupations” to Schedule A, meaning they would be declared to be “shortage occupations,” and no longer require PERM labor certification.
What is a Schedule A Shortage Occupation?
Schedule A, established in the 1960s, is a list of occupations that the Department of Labor has designated as being jobs for which there aren’t sufficient American citizens or permanent residents available to do. Schedule A was intended to help American employers attract foreign talent to fill openings in occupations facing labor shortages. Schedule A has not been updated since 1991.
Significance for Employers: PERM Would No Longer Be Needed
By including occupations on Schedule A thereby declaring them to be “shortage occupations,” employers would no longer need to go through the expensive and time-consuming process for permanent labor certification.
What is PERM Labor Certification?
The current labor certification process, called PERM is required to obtain permanent residence for most employment-based applications. The first step in such an application is that the U.S. Department of Labor (DOL) must certify the job as being one for which there are not sufficient Americans available to do. The process requires applying to the DOL for a determination of the required wage to be paid for that job in the geographic area. Then the employer goes through a recruitment process following very specific rules about when/where/for how long to advertise the position, the content of the ad for the position, reporting every person who applied for the position and what action was taken on the application and why, then filing a labor certification application with DOL. DOL could come back and audit the recruitment report, could order supervised recruitment, could deny or approve the application. Approval means DOL agrees American citizens or permanent residents who are minimally qualified to do the job did not apply. Once the job is certified by DOL, then the employer goes through the visa petition process with Immigration. The PERM labor certification process by itself currently can take upwards of two years before ever getting to the immigration steps!
Adding STEM-related occupations to Schedule A would remove the need to do the PERM labor certification process, because the government will already have declared that there is a need for workers in that occupation. As a result, employers would see a substantial time and money savings in the process to obtain permanent residence for foreign workers.
What is the Purpose for Declaring STEM-related Occupations to be Shortage Occupations?
The Government stated it believes this can be an important arm in the American strategy for innovation, safety, security, and progress. Cite or link to notice
The DOL has been woefully slow to respond to the actual on-the-ground realities of the labor market. We saw in the middle of a massive respiratory pandemic that physical therapists were on the shortage occupation list, but respiratory therapists were not! The result was a process that took literally years longer than it might have to get qualified certified respiratory therapists to the U.S. Modernizing the Schedule A list of shortage occupations can address critical employment gaps faced by the country.
When Will the Order Become Effective?
The Department of Labor is to prepare a request for information by December 13, 2023, asking stakeholders about adding “AI and other STEM-related occupations” to Schedule A.
We recommend taking action such as advocating that employment-related, HR, business, and other organizations or associations including chambers of commerce enthusiastically support this measure.
For assistance with the immigration or I-9 compliance needs of your organization contact:
Barbara Marcouiller, Attorney
Davidson Kilpatric & Krislock PLLC