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1 1 (December 20, 2023)

handle is hein.crs/goventm0001 and id is 1 raw text is: Congre &cna2 les hnfarming Ih leg iaive deba 3rcb Se since 1914 December 20, 2023 Permanent Employment-Based Immigration: Labor Certification and Schedule A In recent years, U.S. employers have reported widespread shortages of workers in various occupations. These reported labor shortages reinforce long-standing concerns about U.S. international competitiveness, particularly in science and technology. Immigration scholars assert that immigration policy can be used to attract skilled foreign talent, foster technical innovation, and promote economic growth. The Immigration and Nationality Act of 1952 (INA, Title 8 of the U.S. Code) governing U.S. immigration policy contains employment-based (EB) immigration provisions allowing U.S. employers to sponsor skilled foreign nationals who meet specified criteria for lawful permanent resident (LPR) status (i.e., a green card). The INA also requires that employers take steps to ensure such employment does not adversely affect the wages and working conditions of comparatively employed U.S. workers. These INA provisions are implemented through a labor certification process that requires employers to demonstrate to the Department of Labor (DOL) that they have attempted to hire U.S. workers for the positions for which they seek foreign workers. Widely viewed as complicated and expensive, labor certification typically adds one to two years to the EB immigration process. DOL maintains a list of occupations known as Schedule A for which DOL has pre-certified the existence of a national labor shortage and for which labor certification is not required. Schedule A currently includes only nurses and physical therapists and was last updated in 1990. Given identified labor shortages in key industries and occupations (e.g., medicine, artificial intelligence), some have proposed expanding the number of Schedule A occupations to expedite the sponsorship of skilled foreign workers. Permanent Employment-Based Immigration U.S. employers seeking to sponsor foreign workers for LPR status can do so through the first three of five INA employment-based preference categories EB1 (persons of extraordinary or outstanding ability), EB2 (professionals with advanced degrees, persons of exceptional ability), and EB3 (professionals with bachelor's degrees, skilled and unskilled shortage workers)-according to a hierarchy of education, skills, and other qualifications. (EB4 and EB5 categories are distinct, covering certain special and employment creation immigrants, respectively.) Each EB category has an annual numerical limit and together are limited to 140,000 foreign workers and accompanying family members. Labor certification, however, applies only to most EB2 and all EB3 immigrants. U.S. employers typically sponsor for LPR status foreign workers whom they already employ and who have been residing in the United States in a temporary (nonimmigrant) immigration status (e.g., student F-1 visa or specialty worker H-1B visa). To sponsor EB2 and EB3 foreign workers, employers follow a two-part process. First, they submit a labor certification application to DOL. Once approved, they then submit an immigration petition to the U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS). Some prospective EB immigrants can self-petition, but most EB2 and all EB3 immigrants require sponsoring U.S. employers to petition on their behalf. USCIS approves immigrant petitions of foreign nationals who meet their immigrant category requirements and are not inadmissible. Labor Certfication The INA's labor certification provisions require employers to demonstrate that there are insufficient U.S. workers and that the foreign national's employment will not adversely affect wages and conditions for similar U.S. workers. DOL implements this process through the Program Electronic Review Management (PERM) labor certification process managed by DOL's Employment and Training Administration (ETA). Employers must submit ETA Form 9089 Application for Permanent Employment Certification for each position. One application can be used for multiple prospective EB immigrants doing the same work. To obtain labor certification for their prospective permanent immigrant workers, employers must undertake three steps: 1. obtain a prevailing wage determination (PWD), typically from DOL; 2. attempt to recruit U.S. workers for the position (labor market test); and 3. submit the PERM application to DOL. First, to comply with the INA's mandate that the hiring of a foreign worker would not adversely affect the wages of comparatively employed U.S. workers, employers must offer to the foreign worker a wage that is at least as much as the prevailing wage, defined as the average wage paid to similarly employed workers in that occupation in the area of intended employment. Employers can request prevailing wage information from DOL's National Prevailing Wage Center or use other recognized information sources. Second, to test the U.S. labor market for willing, available, and qualified U.S. workers, employers must attest that they met mandatory recruitment requirements, including placing