Written by Steven Hubbard, Senior Data Scientist and Leslie Dellon, Senior Attorney (Business Immigration)

The White House’s recent executive order on artificial intelligence marks an important shift in employment-based immigration law, signaling the beginning of a potentially transformative process.

As one component of the process, President Biden has required the Department of Labor (DOL) to issue a request for information (RFI) by December 13 to consider updates to the Schedule A list of occupations. The RFI is to request input in “identifying AI and other STEM-related occupations.” This is a major step that invites public and expert engagement to shed light on the nuances of updating the list—a provision that has remained unchanged since 1991.

The modernization of the Schedule A list could be instrumental in addressing the urgent employment gaps the United States currently faces.

Understanding Schedule A

Schedule A is an important component of the employment-based immigration process in the United States. Established in the 1960s, it was designed to help the country attract foreign talent to fill labor shortages in various high-demand occupations and industries. When an occupation is listed on Schedule A, the Secretary of Labor has already established the need for workers, so certain time-consuming steps in the labor certification process are eliminated. An employer includes the labor certification application with its petition to U.S. Citizenship and Immigration Services (USCIS) to sponsor the foreign worker.

The existing Schedule A list in Group I comprises just two occupation groups—physical therapists and professional nurses. Schedule A also has a Group II for certain workers in the sciences or arts.

However, the Schedule A list has not seen significant updates since 1991, rendering it outdated and disconnected from the current labor market realities. In today’s rapidly evolving job landscape and the added impacts of the COVID-19 pandemic, there is a pressing need to reevaluate and update this list.

Updating the Schedule A List of Occupations

To navigate these challenges effectively, DOL should adopt a data-driven approach to updating the Schedule A list rather than creating a static list of which occupations currently are experiencing shortages. This means leveraging comprehensive labor market analytics to ensure the list accurately reflects the occupations where shortages are most acute. By analyzing trends in unemployment rates, employment growth, wage patterns, and job vacancy rates, the DOL can pinpoint sectors that are experiencing critical shortages and require intervention.

Countries like the United Kingdom and New Zealand have successfully employed such strategies. These nations adjust their shortage occupation lists regularly, considering extensive labor market research and input from key stakeholders. This dynamic approach allows for a responsive immigration system that adapts to the changing economic landscape and skill demands.

Modernization of Schedule A extends beyond the immediate benefits of filling job vacancies. It signifies a commitment to maintaining the United States’ status as a hub for innovation and progress. By attracting international talent in high-demand fields like STEM and healthcare, the U.S. can ensure that it has the skilled workforce necessary to drive forward advancements in these critical areas.

A data-driven update to Schedule A could also inform broader economic strategies, including the development of targeted workforce training programs and industry-education partnerships. Such strategic planning could facilitate the upskilling of the domestic workforce to meet future demand, thus complementing the contributions of international talent.

The White House’s AI executive order marks a pivotal moment in employment-based immigration, with the potential to reshape the labor certification process. Updating Schedule A through data-driven updates aligns with current economic conditions and offers predictability and flexibility to the employment-based immigration system. This step can help the United States address critical workforce gaps, stimulate economic growth, and remain competitive on a global scale. It’s a win-win for both international talent and U.S. workers alike.

However, unless Congress also modernizes the employment-based immigrant visa categories, with their annual limits creating lengthy wait times before many foreign workers can become U.S. lawful permanent residents, these workers may still seek opportunities in other countries.