Permanent Employment-Based Immigration: Labor Certification and Schedule A

Permanent Employment-Based Immigration: Labor Certification and Schedule A

December 20, 2023
Permanent Employment-Based Immigration: Labor
Certification and Schedule A
In recent years, U.S. employers have reported widespread
U.S. employers typically sponsor for LPR status foreign
shortages of workers in various occupations. These reported
workers whom they already employ and who have been
labor shortages reinforce long-standing concerns about U.S.
residing in the United States in a temporary (nonimmigrant)
international competitiveness, particularly in science and
immigration status (e.g., student F-1 visa or specialty
technology. Immigration scholars assert that immigration
worker H-1B visa). To sponsor EB2 and EB3 foreign
policy can be used to attract skilled foreign talent, foster
workers, employers follow a two-part process. First, they
technical innovation, and promote economic growth.
submit a labor certification application to DOL. Once
approved, they then submit an immigration petition to the
The Immigration and Nationality Act of 1952 (INA, Title 8
U.S. Department of Homeland Security’s U.S. Citizenship
of the U.S. Code) governing U.S. immigration policy
and Immigration Services (USCIS). Some prospective EB
contains employment-based (EB) immigration provisions
immigrants can self-petition, but most EB2 and all EB3
allowing U.S. employers to sponsor skilled foreign
immigrants require sponsoring U.S. employers to petition
nationals who meet specified criteria for lawful permanent
on their behalf. USCIS approves immigrant petitions of
resident (LPR) status (i.e., a green card).
foreign nationals who meet their immigrant category
requirements and are not inadmissible.
The INA also requires that employers take steps to ensure
such employment does not adversely affect the wages and
Labor Certification
working conditions of comparatively employed U.S.
The INA’s labor certification provisions require employers
workers. These INA provisions are implemented through a
to demonstrate that there are insufficient U.S. workers and
labor certification process that requires employers to
that the foreign national’s employment will not adversely
demonstrate to the Department of Labor (DOL) that they
affect wages and conditions for similar U.S. workers.
have attempted to hire U.S. workers for the positions for
which they seek foreign workers. Widely viewed as
DOL implements this process through the Program
complicated and expensive, labor certification typically
Electronic Review Management (PERM) labor certification
adds one to two years to the EB immigration process.
process managed by DOL’s Employment and Training
Administration (ETA). Employers must submit ETA Form
DOL maintains a list of occupations known as Schedule A
9089 Application for Permanent Employment Certification
for which DOL has pre-certified the existence of a national
for each position. One application can be used for multiple
labor shortage and for which labor certification is not
prospective EB immigrants doing the same work.
required. Schedule A currently includes only nurses and
physical therapists and was last updated in 1990. Given
To obtain labor certification for their prospective permanent
identified labor shortages in key industries and occupations
immigrant workers, employers must undertake three steps:
(e.g., medicine, artificial intelligence), some have proposed
expanding the number of Schedule A occupations to
1. obtain a prevailing wage determination
expedite the sponsorship of skilled foreign workers.
(PWD), typically from DOL;
Permanent Employment-Based Immigration
2. attempt to recruit U.S. workers for the
U.S. employers seeking to sponsor foreign workers for LPR
position (labor market test); and
status can do so through the first three of five INA
3. submit the PERM application to DOL.
employment-based preference categories—EB1 (persons of
First, to comply with the INA’s mandate that the hiring of a
extraordinary or outstanding ability), EB2 (professionals
foreign worker would not adversely affect the wages of
with advanced degrees, persons of exceptional ability), and
comparatively employed U.S. workers, employers must
EB3 (professionals with bachelor’s degrees, skilled and
offer to the foreign worker a wage that is at least as much as
unskilled shortage workers)—according to a hierarchy of
the prevailing wage, defined as the average wage paid to
education, skills, and other qualifications. (EB4 and EB5
similarly employed workers in that occupation in the area
categories are distinct, covering certain special and
of intended employment. Employers can request prevailing
employment creation immigrants, respectively.) Each EB
wage information from DOL’s National Prevailing Wage
category has an annual numerical limit and together are
Center or use other recognized information sources.
limited to 140,000 foreign workers and accompanying
family members. Labor certification, however, applies only
Second, to test the U.S. labor market for willing, available,
to most EB2 and all EB3 immigrants.
and qualified U.S. workers, employers must attest that they
met mandatory recruitment requirements, including placing
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Permanent Employment-Based Immigration: Labor Certification and Schedule A
a job order for 30 days with a state workforce agency in the
The second component, 20 C.F.R. §656.15, outlines the
employment location, and advertising the job in an
Schedule A labor certification process. Employers seeking
appropriate newspaper or journal. For some occupations,
to hire persons employed in Schedule A occupations do not
employers must take other documented recruiting steps.
need to conduct a test of the U.S. labor market nor apply to
DOL for labor certification. Instead, they submit an
Third, the employer must submit the PERM application to
uncertified PERM application directly to USCIS, along
DOL. The filing date when DOL receives it is used by
with the immigrant petition.
USCIS and the State Department as the priority date that
establishes a prospective immigrant’s place the green card
USCIS then determines whether the employer and the
queue. If DOL certifies the application, the labor
foreign national have fulfilled the PERM requirements and
certification portion of the immigration process is
whether the foreign national is qualified for and intends to
concluded. If DOL denies it, the employer may appeal. If
pursue the Schedule A occupation. As such, USCIS decides
DOL audits the application, the employer typically must
whether to grant the Schedule A labor certification while
provide additional documentation.
adjudicating the EB immigrant petition. USCIS’s Schedule
A determination is final and may not be appealed. USCIS’s
Completing PERM requires considerable time. Obtaining a
adjudication of the PERM application is separate from its
PWD typically requires about six months and recruitment at
adjudication of the EB immigrant petition, and approval of
least two months. Submitting a PERM application to DOL
the former does not guarantee approval of the latter.
currently requires 9 to 10 months. Thus, employers can
expect to require at least 17 months to conclude the process.
Discussion and Policy Options
DOL’s Schedule A ostensibly represents its determination
Next, employers submit their approved PERM labor
about the measurement and existence of labor shortages.
certifications to USCIS, along with a USCIS Form I-140
Disagreement exists over what constitutes a labor shortage.
Immigrant Petition for Alien Workers, the second and final
While some support more active approaches by the federal
major step required for hiring a permanent foreign worker.
government to determining shortage occupations and
applying them to immigration policy, others remain
Schedule A
skeptical of government intervention in the labor market.
Schedule A was established in 1965 through regulation to
Some opponents of such intervention contend that specific
address labor shortages during a period of technological
judgements of individual employers rather than a
advancement and international competition. According to
government entity would best determine labor market
one historical account, it represented “a pragmatic approach
requirements. Apart from these issues surrounding
to the administrative burden of issuing individual labor
Schedule A, some criticize the labor certification process
certifications.” The regulations granted the DOL Secretary
itself for its cost and time. Others assert that PERM
broad authority to revise Schedule A based on “his own
provides merely the appearance of protecting U.S. workers
initiative or upon a written petition of any person requesting
while actually doing little to provide competing U.S.
the inclusion or omission of any occupation” based on
workers with access to jobs.
“reasonable grounds.” Between 1969 and 1990, the
occupations listed on Schedule A changed numerous times,
Revising Schedule A raises contentious issues, including
but have not changed substantially since 1990.
whether relatively skilled foreign workers hired as EB
immigrants negatively impact the employment prospects,
Schedule A regulations contain two components. The first
earnings, and working conditions of U.S. workers; whether
component, 20 C.F.R. §656.5, pre-certifies certain workers:
PERM itself should be expanded or eliminated; and the
degree to which any governmental entity should intercede
We have determined there are not sufficient United
in the U.S. labor market.
States workers who are able, willing, qualified, and
available for the occupations listed below on
Proposed Schedule A policy options have included:
Schedule A and the wages and working conditions
of United States workers similarly employed will
• Authorizing studies to determine whether
not be adversely affected by the employment of
Schedule A occupations should be
aliens in Schedule A occupations. An employer
modified or expanded through regulation.
seeking a labor certification for an occupation listed
• Expanding the number of occupations in
on Schedule A may apply for that labor certification
Schedule A. This could involve using a
under §656.15.
methodology for determining listed
20 C.F.R. §656.5 also lists two occupation groups:
occupations that would likely require
•
continuous monitoring and revision, such
Group 1 consists of physical therapists
as the briefly attempted 1993 Labor
and professional nurses who have met the
Market Information Pilot Program.
regulatory requirements for qualifications
•
and state licensing.
Introducing a regional component to
•
Schedule A that allows labor shortages in
Group 2 consists of “aliens of exceptional
some parts of the country to be addressed
ability in the sciences or arts.”
even if they do not register nationally.
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Permanent Employment-Based Immigration: Labor Certification and Schedule A
•
IF12555
William A. Kandel, Specialist in Immigration Policy

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https://crsreports.congress.gov | IF12555 · VERSION 1 · NEW