Schedule A Shortage-Occupation List: How Pre-Certification Bypasses PERM, and What the 2023 RFI Means for Expansion

What changed

On December 21, 2023, the Department of Labor published a Request for Information on Revising Schedule A Occupation List, 88 Fed. Reg. 88047, the first formal step in nearly two decades toward potentially expanding the Schedule A pre-certified shortage-occupation list at 20 CFR 656.5. The RFI did not propose a rule. It asked the public — employers, labor unions, trade associations, advocacy groups, academic economists, and the public at large — to comment on the methodology DOL should use to identify labor shortages and on whether particular occupations (especially in STEM fields and critical-and-emerging technologies) should be added to the list.

The RFI matters not because it changed any operative rule (it didn’t) but because it signaled an active policy process around an under-used regulatory mechanism. As of this writing, no expansion has been finalized. The operative Schedule A list remains the two-group list at 20 CFR 656.5: Group I (registered nurses and physical therapists) and Group II (aliens of exceptional ability in the sciences or arts, including college and university teachers, and aliens of exceptional ability in the performing arts).

The underlying Schedule A pre-certification mechanism — distinct from the question of which occupations are on the list — was last substantively re-codified in the December 27, 2004 PERM final rule at 69 Fed. Reg. 77326, effective March 28, 2005. The procedural shortcut sits at 20 CFR 656.15.

The architecture is unusual within U.S. labor-certification law. Most employer-sponsored permanent-residence cases require an employer-specific labor-certification process under 20 CFR Part 656 Subparts B–E — a prevailing-wage determination from the National Prevailing Wage Center, a recruitment campaign for U.S. workers, posting and advertising under 20 CFR 656.17, and DOL adjudication of the ETA Form 9089. The whole process commonly runs 9 to 18 months and is subject to audit.

Schedule A short-circuits all of that. For occupations on the list, DOL has already made the across-the-board determination required by INA § 212(a)(5)(A) — that there are not sufficient U.S. workers available and that wages and working conditions of similarly employed U.S. workers will not be adversely affected. The employer files an I-140 directly with USCIS, including an uncertified ETA Form 9089, evidence of the alien’s qualifications, the prevailing-wage determination, and proof of the notice-of-filing posting at the worksite for 10 consecutive business days. No DOL filing, no DOL adjudication, no audit risk on the labor-market findings.

Why it matters

Three structural points drive how the Schedule A mechanism is used and what an expansion would mean.

The mechanism is the leverage point. Adding an occupation to Schedule A removes the largest single source of delay in the EB-2 and EB-3 timeline. The PERM phase is what makes employer-sponsored green-card cases multi-year. Schedule A’s pre-certification eliminates that phase entirely. Any expansion of the list materially accelerates the timeline for the newly-added occupations — by months in the best case, by a year or more in the typical case.

The list has been frozen since 1991. The current Group I and Group II categories were last substantively revised by DOL rulemaking in the early 1990s. The 2004 PERM rule re-codified them without substantive change. So Schedule A as an operative tool has been static for more than three decades, even as labor-market conditions have shifted considerably. Most strikingly, the list contains no occupations from the critical-and-emerging-technologies areas that federal strategic documents have identified as workforce priorities.

An expansion would interact with EB-2 and EB-3 backlogs differently for different countries. For chargeability areas where EB-2 and EB-3 are current, a Schedule A expansion materially accelerates time to green card. For India and China, the operative bottleneck is the per-country cap and the visa-bulletin backlog — not the PERM phase. A new Indian EB-2 STEM applicant added to Schedule A would still face a multi-year wait for a visa number. The 2024–2026 conversation about Schedule A expansion has accordingly focused on whether USCIS could pair an expansion with per-country flexibility (politically far harder), or whether the expansion’s benefits would accrue mostly to non-backlogged countries.

A note on the RFI’s methodology questions. DOL asked commenters to address how it should measure labor shortages — using Bureau of Labor Statistics data, O*NET data, employer-reported vacancy rates, occupational projections, or some combination. It also asked whether shortages should be measured at the national level, the regional level, or the metropolitan-area level; whether they should be measured by occupation, by occupation-skill combination, or by occupation-industry combination; and how often the list should be reviewed and updated. The methodology choice is the substantive choice — different methodologies produce very different candidate lists.

A second note on the underlying statutory authority. The Schedule A regulation is grounded in INA § 212(a)(5)(A)(ii), 8 U.S.C. § 1182(a)(5)(A)(ii), which permits the Secretary of Labor to make the labor-availability and wage-impact determinations on a class-wide basis. The Secretary’s authority is broad, but any expansion must still satisfy the Administrative Procedure Act’s notice-and-comment requirements. So even after the RFI process closes, DOL must publish a notice of proposed rulemaking, accept and respond to comments, and publish a final rule before any expansion takes effect.

Way forward

For employers, practitioners, and immigration policy observers tracking Schedule A in 2026:

1. Treat the current list as static for filing strategy. Do not file an EB-2 or EB-3 petition as Schedule A based on the expectation that the occupation will be added before adjudication. The petition’s classification is fixed at filing; an occupation added later does not retroactively cover a pending case.
2. Monitor the Federal Register for any NPRM. Any expansion will come through a Federal Register notice of proposed rulemaking, with a typical 30 to 60 day comment window. Practitioners should be ready to advise clients within days of an NPRM.
3. If you represent an employer with shortage-occupation needs, comment on the RFI process. Detailed comments documenting actual recruitment difficulty, vacancy duration, salary trajectories, and turnover rates carry more weight than generalized assertions of labor shortage. DOL’s eventual rulemaking will cite the commented data.
4. Pre-position record-keeping for any expansion. If an occupation in your workforce is a plausible candidate for Schedule A addition (any STEM occupation in critical-and-emerging-technology areas, certain healthcare occupations beyond RNs and PTs, certain skilled-trades occupations), keep clean recruitment and turnover data now. An expansion that takes effect in 2027 may require petitioners to document occupation-specific facts as of an earlier baseline.
5. For currently-covered occupations, file cleanly. RNs and PTs filed under Schedule A — see the companion article on EB-2 Schedule A: Nurses, Physical Therapists, and the Pre-Certified Labor Certification — must still satisfy the credential and prevailing-wage and notice-of-filing requirements. Pre-certification is for the labor-market question only; the rest of the I-140 file remains subject to USCIS adjudication and audit.
6. Watch for parallel administrative tools. Even absent a Schedule A expansion, USCIS and DOL have other administrative levers that affect shortage-occupation immigration — Form I-140 premium processing availability, O-1 extraordinary-ability adjudication standards, EB-2 NIW guidance for STEM endeavors. Track those in parallel.

The anchoring authorities are the statute at INA § 212(a)(5), the regulations at 20 CFR 656.5 and 20 CFR 656.15, the 2004 PERM final-rule preamble at 69 Fed. Reg. 77326, and the December 2023 RFI at 88 Fed. Reg. 88047.

Disclaimer

We’re a software company, not a law firm. Nothing here is legal advice. Schedule A status — and any future expansion of the Schedule A list — is set by the Department of Labor through formal rulemaking; the operative rules at any given moment control. Consult a licensed immigration attorney before relying on any of the above, and verify every citation against the primary source — 20 CFR 656.5 and 20 CFR 656.15 at the eCFR, the 2023 RFI at the Federal Register, and any subsequent rulemaking notices that affect the list.