Public Comment by the Federation of American Scientists Submitted to the Department of Labor

By and June 1, 2021


The Federation of American Scientists (FAS) submits this comment in response to the request for information from the Department of Labor (DOL) which is seeking “information on the sources of data and methodologies for determining prevailing wage levels covering employment opportunities that United States (U.S.) employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas or through H-1B, H-1B1, E-3 nonimmigrant visas.”

The Technology and Innovation Initiative at FAS is focused on the intersection of immigration policy and emerging technologies in advancing the nation’s security and economic growth. Talent is one of the scarcest resources in the global race for predominance in artificial intelligence (AI) and other technologies, yet the United States risks squandering this advantage. Despite the high proportion of foreign-born students and professors in U.S. science and engineering departments, the vast majority of whom wish to stay in the United States, much of the nation’s resident technology talent does not have a clear path to U.S. citizenship. 

DOL can help maintain U.S. leadership in AI and other critical science and technology fields by incorporating more data into evaluations of the labor market, conducting more regular analyses of labor shortages in the United States, and amending the Schedule A list of occupations exempt from labor certification.


Defining a Labor Market Shortage

Although economists and policy experts debate what data and methodology should be used to determine if an occupation is experiencing a labor shortage, there can be no doubt that DOL can improve upon the status quo.

Dr. Malcolm Cohen of the University of Michigan explored the idea of reliably predicting labor shortages with economic indicators in the late 1980s and early 1990s. Through his research, he developed a thorough methodology for DOL that was never adopted but should be revisited.

The United Kingdom also regularly evaluates labor shortages and regularly updates its own Shortage Occupation List (SOL). The Migration Advisory Committee, an independent body that advises the United Kingdom government on immigration issues, analyzes labor market conditions with nine economic indicators from five datasets:

  1. Percentage change of median real pay over one year (Annual Survey of Hours and Earnings (ASHE); Consumer Price Inflation with Housing (CPIH));
  2. Percentage change of median real pay over three years (ASHE; CPIH)
  3. Predicted hourly wage for a set of reference characteristics relative to average predicted wage for the same characteristics over all occupation codes (Annual Population Survey (APS));
  4. Vacancies divided by total employment (European Social Survey (ESS); APS);
  5. Vacancy postings divided by total employment (Burning Glass; APS);
  6. Percentage change of employment level over one year (APS);
  7. Percentage change of median paid hours worked over three years (ASHE);
  8. Change in new hires over one year (APS); and
  9. Weighted stock of unemployment and inactive professionals divided by employed, unemployed, and inactive professionals (APS).


Updating the Schedule A List

Schedule A is the list of occupations where DOL has determined “there are not sufficient U.S. professionals who are able, willing, qualified, and available” and the employment of foreign professionals “will not adversely affect the wages and working conditions of U.S. professionals similarly employed.” Applicants for permanent residency based on employment in such occupations are effectively exempt from the DOL’s labor certification requirement, which can greatly speed up the immigration process.

Rather than incorporating a thoughtful and timely collection of labor market indicators, however, Schedule A has not been updated in thirty years, and during that time has included only physical therapists and nurses. (The additional Schedule A designation for “aliens of extraordinary ability” is seldom used, as it is largely duplicative with eligibility criteria for existing green card categories.) 

DOL has the ability—whether internally or through a federal advisory committee—to regularly update the Schedule A list of occupations. The prior research and UK model described above would be good starting points.


AI as a National Priority

There is strong evidence that AI professionals are in sufficiently high demand and should be included in Schedule A, particularly given the fact that they are paid high salaries. As of 2019, the number of AI-related job postings on Burning Glass, which scrapes job openings from the major online job boards and categorizes them based on skills needed, geographic location, and wage levels, has tripled since 2010. Meanwhile, 40 percent of states are demonstrating demand for AI-related jobs at more than 1,000 positions per 100,000 working-age people in the state. Salaries for these jobs are quite high, with many companies paying AI professionals hundreds of thousands of dollars. According to a recent Deloitte study, about 20 percent of surveyed companies at every level of AI sophistication said their AI skills gap was either “major” or “extreme.”



More regular evaluations of labor market conditions in the United States would go a long way toward making the immigration system responsive to the economic needs of this country.

As described above, DOL should analyze not only prevailing wage data, but also data on job vacancies, employment rate, and other specific indicators of a labor shortage in particular occupations.

More information about updating Schedule A and implementing more regular evaluations of labor shortages in the United States can be found in Lindsay Milliken’s report, “A Brief History of Schedule A: The United States’ Forgotten Shortage Occupation List,” University of Chicago Law Review Online (2020), and our co-authored analysis, “Winning the Global Race for Artificial Intelligence Expertise: How the Executive Branch Can Streamline U.S. Immigration Options for AI Talent,” N.Y.U. J. Legis. & Pub. Pol’y Quorum (2021). 


Thank you for your attention to these important matters.

Doug Rand
Senior Fellow
Director, Technology and Innovation Initiative

Lindsay Milliken
Research Assistant