President Biden last week released a national security memorandum to Vice President and presidential candidate Kamala Harris and the heads of numerous national security-related federal agencies to address “harnessing artificial intelligence (AI) models and AI-enabled technologies in the United States Government, especially in the context of national security systems (NSS)”. President Biden used this order as an opportunity to direct federal leadership to, within 90 days, explore options to “prioritizing and streamlining” immigrant visa processing for applicants working in “sensitive technologies”.
While the term “sensitive technologies” was undefined, the language used in the order was clear that the term will likely to be employed broadly to include many STEM occupations, even those not connected to AI. The memorandum elaborated that fast-tracking such immigrant visas, “shall assist with streamlined processing of highly skilled applicants in AI and other critical and emerging technologies”.
The memorandum also did not specify how, exactly, the agencies should streamline these kinds of green card adjudications. One likely option, however, would be to exempt STEM employers from having to undergo the PERM labor certification process. The PERM labor certification process requires employers to first demonstrate to the U.S. Department of Labor (DOL) that they have attempted to recruit U.S. workers before they may petition U.S. Citizenship and Immigration Services (USCIS) for green card for a foreign worker.
While the PERM process is far from perfect and subject to substantial fraud, it is the primary tool the U.S. government uses to protect U.S. workers from displacement, wage suppression, and unfair competition from the admission of immigrant (permanent) workers. The regulations governing PERM implement section 212(a)(5)(A) of the Immigration and Nationality Act (INA), which makes most foreign workers inadmissible unless the DOL 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.”
DOL can exempt STEM employers from undergoing this process entirely by adding these occupations to what is known as Schedule A. Schedule A is a list of occupations, set forth at 20 C.F.R. § 656.15, for which DOL has pre-determined that there are not sufficient U.S. workers who are able, willing, qualified, and available to work and that the employment of aliens in such occupations will not adversely impact U.S. workers similarly employed.
Adding STEM occupations to schedule A would be consistent with the Biden-Harris administration’s larger immigration policy goals as well. Executive Order 14012, issued by President Biden on February 2, 2021, for example, instructed DHS to “eliminate barriers” to the naturalization process. Later, DOL issued a Federal Register notice indicating that it is considering whether it can justify allowing STEM employers to skip the mandatory PERM labor certification application process before DOL to receive an immigrant visa (green card) and requested input from the general public regarding how a worker shortage could be identified in STEM fields, conceding that its data sources “are not sufficient” to demonstrate a “labor shortage” in STEM or other occupations.
CIS submitted a comment to DOL in May 2024 to explain how neither wage data nor data related the number of Americans with STEM degrees demonstrate the existence of labor shortage in STEM occupations to justify allowing employers to circumvent legal protections for U.S. workers. If employers are truly desperate for workers, DOL should see wages rising rapidly. American Community Survey (ACS) data analyzed by CIS, however, shows that wages in most STEM occupations declined between 2017-2022 (the most recent data available), except for tech occupations, which showed very little (0.3 percent) annual growth.
Additionally, because STEM occupations often require high levels of education and training, CIS highlighted ACS data that demonstrates the large number of U.S. workers who have STEM degrees but are currently not working in STEM occupations. This data suggests that STEM employers are not offering wages and benefits that are attractive to these high-skilled U.S. workers. Allowing STEM employers to skip the PERM labor certification process before DOL to hire foreign workers, therefore, would directly undermine the interests of U.S. workers, in conflict with both the INA and DOL’s mission.
We went further to explain that, as a primary matter, the concept of a “labor shortage” is strained in a free market economy as large as the United States’. In a “tight” labor market, employers should be encouraged to offer higher wages and provide better work conditions to attract more workers. Generally, “labor shortages” should not exist as long as businesses are free to raise the prices of their goods or services.
In addition to directing agency heads to streamline the processing of these green cards, President Biden’s October 24, 2024, national security memorandum also directs the agencies to “secure adequate resources” for the expedited processing of these immigrant visa applicants. This could come in the form of a reallocation of existing Department of Homeland Security or DOL funds or spur federal officials to request additional funding from Congress — as well as a diversion of adjudicators from other workloads to reduce overall processing times.
So what does the inclusion of these immigration provisions in President Biden’s national security memorandum really mean? First, DOL and USCIS political leadership are now under more pressure to exempt STEM employers from the processes designed to provide the minimal protections currently afforded to U.S. workers.
Second, because DOL likely does not have strong economic reasons to add STEM occupations to Schedule A, DHS may instead use President Biden’s memorandum to justify making regulatory changes quickly without engaging in standard “notice and comment” procedures required by the Administrative Procedure Act (APA). The APA allows agencies to fast track the implementation of certain rules if an agency can demonstrate “good cause” to warrant immediate (or near immediate) implementation. The national security concerns outlined in President Biden’s memorandum may serve as a basis for just that.
Third, timing is key. President Biden’s memorandum was issued less than two weeks before the presidential election, signaling to Silicon Valley and other tech lobbyists that a potential Harris administration would take action to appease their demands for fewer restrictions on obtaining foreign labor. But the deadline President Biden gave for agencies to take action is a bit more than two months after the election — making it impossible for voters to respond to a policy that undercuts their labor interests.