USCIS and DOL Policy Updates May Allow More Employers to Circumvent Protections for American Workers

By Elizabeth Jacobs on May 8, 2024

USCIS issued a policy update on April 10, 2024, that may expand which types of occupations can circumvent U.S. labor market protections that are required by federal law for employers to sponsor a foreign worker for a green card. By adopting the Department of Labor’s (DOL) definition of which occupations are considered “Schedule A”, USCIS is attempting to streamline how employers can petition foreign workers for green cards at the expense of the already minimal U.S. worker protections. This policy update comes at the same time DOL is considering amending its own regulations to add STEM occupations to the “Schedule A” list. Notably, an employer trying to fill a position in a “Schedule A” occupation may petition USCIS for a foreign worker without first trying to hire an American worker for that position.

Typically, federal law requires employers who wish to petition for an immigrant worker to conduct a labor market test and submit a permanent labor certification application to the DOL Employment and Training Administration (ETA) in a process known as PERM. This process, when completed, allows an employer to hire a foreign worker to work permanently in the United States and allows that foreign worker to receive a green card (i.e., obtain lawful permanent resident status). Green card holders may eventually become citizens or may live and work in the United States as LPRs indefinitely if they choose not to naturalize.

The purpose of the PERM labor certification is to both protect the U.S. labor market from unfair competition and to maintain the working conditions of domestic jobs. While the PERM program is far from perfect and subject to substantial fraud, as reported by the DOL Office of Inspector General (OIG), it is the main tool used by the U.S. government to prevent U.S. workers from being replaced with foreign workers benefiting from the employment-based immigrant visa categories. (The PERM process does not apply to foreign workers seeking to enter the United States on nonimmigrant (temporary) visas.)

What Does the PERM Process Require? The PERM process requires DOL ETA to certify to USCIS that there are: (1) not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment; and (2) that the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. Only after a PERM case is certified can an employer file a Form I-140 to petition USCIS to classify the beneficiary as an immigrant worker. Generally, PERM certification is required for employment-based 2nd and 3rd preference petitions (EB-2 and EB-3 immigrant visas).

Before an employer can file a PERM application with ETA, the employer must request and obtain a prevailing wage rate from ETA using the prevailing wage determination form. The prevailing wage rate is the average wage paid to similarly employed workers in a specific occupation in the geographic area of intended employment.

Additionally, regulations require that employers attempt to hire a U.S. worker first by advertising the open position in a local paper as a recruiting announcement for the opportunity twice. The employer must also place a job posting for 30 days with the State Workforce Agency (SWA). After the pre-filing recruitment process is completed, the employer must prepare a report describing the steps taken and the results achieved, including the number of hires and number of applicants rejected, categorized by reasons for any rejection.

What Is a “Schedule A” Occupation? For certain occupations, however, DOL has predetermined that there are not sufficient U.S. workers who are able, willing, qualified, and available to fill positions in these occupations. These occupations are referred to as “Schedule A” occupations. Employers, in these cases, may bypass the DOL certification process and, instead, submit their labor certification directly to USCIS.

DOL regulations at 20 C.F.R. § 654.15(b)(2) require, however, that the employer provide its bargaining representative or its employees with notice that an Application for Permanent Employment Certification was filed. The notice must be posted for at least 10 consecutive business days in a clearly visible place at the location of employment.

Currently, DOL has designated two groups of occupations under Schedule A: registered nurses and physical therapists; and beneficiaries with exceptional ability in the science or arts (except performing arts) and beneficiaries with exceptional ability in the performing arts subject to certain conditions. (DOL has also determined that sheepherders are eligible for this type of processing.) DOL regulations define a science or art as “any field of knowledge or skill in which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill”.

The regulation clarifies that an alien “need not have studied at a college or university in order to qualify for the Group II occupation”. The beneficiary, however, must demonstrate “exceptional ability” in their occupation by providing evidence of widespread acclaim and international recognition by experts in their field to qualify, as well as meet other eligibility requirements, such as demonstrating that the intended job in the United States will require exceptional ability.

Why Is USCIS Adopting DOL’s Definition of “Science or Arts”? USCIS made this policy clarification as an attempt to streamline the green card application process. As of March 2024, DOL reported that, on average, a PERM certification takes ETA about 397 days to issue. This does not include the time required for USCIS to process the beneficiary’s Form I-140, Immigrant Petition for Alien Workers. USCIS reports that the agency is currently taking as long as 10 months to process 80 percent of Form I-140 submissions. My colleague Andrew R. Arthur and I have both written about how Biden administration priorities have hindered USCIS’s ability to efficiently administer the legal immigration system.

What’s Next? DOL is expected to propose to amend its regulations to expand the list of occupations that may be considered “Schedule A” or exempt from PERM labor certification requirements. DOL issued what is known in the regulatory world as an RFI or a “request for information”, to request input from the public on “evaluating the utility of expanding Schedule A to include STEM occupations”, and 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”.

DOL’s request for public input was issued expressly because DOL’s current data sets do not demonstrate a labor shortage of U.S. workers in STEM. Nevertheless, DOL is considering extending “Schedule A” status to STEM employers.

Why Does This Matter? Both USCIS and DOL’s policy initiatives indicate a clear objective to expand the types of employers that may circumvent the PERM certification process. By expanding the types of employers who may qualify for Schedule A, more employers will be allowed to hire foreign workers without first advertising the employment opportunity to U.S. workers. As stated above, however, DOL has not produced data that demonstrates that the U.S. labor market’s needs justify sidestepping procedures designed to protect jobs for U.S. workers in additional occupations.

DOL Should Prioritize Strengthening the PERM Process Before Expanding Schedule A List. Improving protections for U.S workers should be DOL’s primary goal for its regulatory agenda. Many improvements can be made without the enactment of new legislation.

For example, DOL could strengthen PERM by updating the required recruiting methods that employers must undergo to list job openings to make it easier for U.S. workers to find such listings. Current regulations require employers to list their openings twice in Sunday papers and list their posting for 30 days with the SWA — but, today, U.S. workers are more likely to seek employment opportunities using the internet rather than from paper newspapers.

DOL should also amend its regulations to require employers to submit documentation to ETA to support their attestation that they are complying with all PERM requirements. In 2020, DOL OIG found that,

An application does not provide ETA enough information to make an informed decision on whether there were no able, available, qualified, and willing U.S. workers for the job opportunity and the job opportunity would not adversely affect the wages and working conditions of U.S. workers similarly employed. The application does not require the employer to submit the information included in the original advertisement (i.e., the job location, position description, job requirements, wage, and where to send resumes). Additionally, the application does not require the employer to document the number of all applicants who applied for the job opportunity, the interviewed applicants’ names, and why the employer did not hire the individuals interviewed.

ETA could also engage in a post-adjudication review to confirm the veracity of the employer’s attestations and verify that a bona fide, full-time opening actually exists and is available to U.S. workers.

Without strengthening this process, DOL cannot faithfully certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.