By Michael H. Neifach, Amy L. Peck & Otieno B. Ombok with Jackson Lewis P.C.

In response to the Executive Order (EO) on Artificial Intelligence, on December 21, 2023, the Department of Labor (DOL) issued a request for information in the Federal Register asking for public comment on possible additions to the Schedule A list, including more STEM or non-STEM fields.

On October 30, 2023, as part of the EO, President Joe Biden directed government agencies to identify new pathways, and build upon existing programs, to attract and retain the best foreign nationals with AI (and other emerging technologies) knowledge, skills, and education. One of the directives was to solicit input, within 45 days, on how to identify AI occupations (and possibly others) for inclusion on the Schedule A list of occupations that have a fast track to permanent residence (“green cards”).

Schedule A occupations do not require that the employer conduct a labor market test because the government has already concluded there are insufficient numbers of qualified U.S. workers available in those fields. To date, Schedule A occupations have been limited to physical therapists, professional nurses, immigrants of exceptional ability in the sciences or arts, including certain college and university teachers, and immigrants of exceptional ability in the performing arts. Expanding the Schedule A occupation list will significantly enhance the ability of employers to attract and retain highly skilled employees.

DOL will accept input, including statistical data and other relevant information, on how the agency should establish a reliable, objective, and transparent methodology for revising Schedule A to possibly include more occupations until February 20, 2024.

Schedule A was established in the mid-1960s. Since then, there have been eight revisions (none were major) and the last revision was in 2004. DOL notes the United States is facing “headwinds” in developing enough U.S. workers in STEM (and some non-STEM) careers to replace those workers who are retiring. To build a stronger economy and meet AI challenges, DOL wants to know:

• What are the sources of data the agency should use to establish unmet needs?
• How should the agency determine the severity of the shortages in various fields?
• Should Schedule A include new STEM and non-STEM fields?

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