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May 13, 2024

Dear ​​Administrator Pasternak,

On behalf of the 24 national unions in the Department for Professional Employees, AFL-CIO (DPE), I appreciate the opportunity to respond to the U.S. Department of Labor’s Request for Information (RFI) regarding “Labor Certification for Permanent Employment of Foreign Workers in the United States; Modernizing Schedule A To Include Consideration of Additional Occupations in Science, Technology, Engineering, and Mathematics (STEM) and Non-STEM Occupations” (RIN 1205-AC16). 

The RFI is directly relevant to DPE’s affiliate unions, which represent over four million professional, technical, and other highly skilled workers. The members of DPE’s unions come from a diverse array of backgrounds, nationalities, and immigration experiences. Within our coalition are U.S. citizens, permanent residents, DACA and TPS beneficiaries, and people working on F, J, H, O, and P nonimmigrant visas. Members of DPE affiliate unions work in both STEM and non-STEM occupations in nearly every industry and sector. 

DPE’s response is informed by its long-time advocacy for fundamental reforms to the U.S. immigration system to ensure enforceable workers’ rights and labor standards in any visa program affecting professionals. We oppose low-road immigration policies that benefit corporate interests by allowing differential treatment of workers as a source of cheap labor, and we support smart policies that ensure all working people can earn a fair return on their work. DPE’s guiding belief is that U.S. immigration policies must work for professionals, and not just employers.

Schedule A Should Not Be Expanded At A Moment of Great Disruption For Professionals

Instead of serving as a dynamic, accurate indicator of occupational shortages in the labor market, Schedule A Group I, in its current form, exists as a sclerotic tool useful only to employers who wish to bypass U.S. workers and avoid investing in training and sustainable working conditions for all professionals. Indeed, Schedule A’s existence largely correlates with a timespan when training for younger workers went from an average of two and half weeks per year in 1979 to most young workers reporting in 2011 that they received no on-the-job training in the previous five years.

Professional nurses provide a useful example. Schedule A Group I has listed professional nurses as a shortage occupation for over 30 years. However, the U.S. Department of Health and Human Services estimates no shortage of nurses, projecting a sufficient number of Registered Nurses nationwide to meet demand in 2030. To the degree professional nurses are leaving their jobs, it is due to poor working conditions. Conversations with nurses indicates that attention should be placed on improving unsafe staffing ratios and addressing workplace violence. 

The experience of professional nurses as a Schedule A occupational designation also  demonstrates a simple reality: no national labor shortage is permanent or indefinite. Like with all markets, supply and demand for professionals in various occupations and areas waxes and wanes over time, and employers, as participants in the labor market, should be expected to respond to these changes appropriately. 

DPE is also concerned with the very timing of this RFI, which DOL issued in response to President Biden’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI). The executive order acknowledges AI’s potential to “displace and disempower workers,” and reports already indicate that more than 4,000 layoffs in professional occupations in the very short time window from May 2023 to date were due to AI. 

Given the expected upheaval in the labor market for professional occupations, DPE believes that no professional occupation should be added to Schedule A until the impact of AI on the workforce is more fully understood, particularly as substantial layoffs in STEM industries persist. Instead, DOL should remove professional nurses from Schedule A in response to the evidence of an ample occupational supply.

True Labor Market Test Remains Best Way to Identify Real-Time Occupational Shortage

DPE believes that a true labor market test at the initial point of hire is the best way to identify a labor shortage in real time. Employers should be required to test the labor market at the earliest point of hire, whether that be when filing an initial I-129 petition to hire a nonimmigrant worker or filing an I-140 for someone based outside the United States.  The labor market test should include mandatory, good-faith recruitment efforts, including digital job postings targeted at a national, diverse pool of both people presently in the workforce and people preparing to graduate from U.S. colleges and universities. Employers should also be required to share the job posting with relevant unions that have members working in their industry. Since DOL can assist employers with contacting unions, this important step should not be burdensome and, given unions’ close proximity to workers, may even help provide employers with a more cost-efficient recruitment process.

Should DOL decide to add occupations to Schedule A Group I, DPE recommends that DOL adopt a series of rigorous, relevant indicators that can provide the most precise, real-time signal of an actual labor shortage. Indicators must include rising wages, high retention rates, investment in training, and workforce diversity. Occupations with significant numbers of recent layoffs should not qualify for Schedule A. DOL must also consult with unions that have members working in relevant occupations and industries. Taken together, these indicators allow DOL to isolate evidence of an actual labor shortage, rather than symptoms of employers’ correctable recruitment and retention practices. In comparison, unemployment rates, whether considered in isolation or in comparison with the full national unemployment rate, should not alone be considered evidence of a labor shortage. 

DOL must also ensure that these indicators are reviewed much more frequently than present practice. Otherwise occupational shortage designations will persist unnecessarily. The experience of professional nurses shows the harm to professionals when shortage designations are not revisited regularly.

DOL should not take the corporate lobby and industry-supported advocacy groups at their word when they claim occupational shortages. In recent years, DPE has watched too many employers claim they cannot find qualified workers only to layoff their employees, including members of our unions, and require them to train their foreign replacements as a condition for their severance. In 2022, for instance, the top 30 H-1B employers - mostly tech and IT outsourcing firms - hired 34,000 new H-1B workers, while laying off at least 85,000 workers in 2022 and the start of 2023.

The Need For Improved Tracking Of The Education To Workforce Pipeline

Underpinning any conversation on recruiting workers from abroad is the question of the supply of available, qualified professionals in the United States. DPE renews its call for improved tracking of the education to workforce pipeline because DOL must have the most accurate statistical picture possible. 

DPE urges the Biden-Harris Administration to work with Congress to take concrete steps to improve STEM education and workforce research and data and to help workers, employers, and educators make informed decisions. Currently, national surveys by the Census Bureau (Community Population Survey) and Bureau of Labor Statistics (Occupational Employment Statistics Survey) are the basis for identifying education and occupation trends. The surveys provide valuable and suitable information for a variety of purposes, but the data produced does not effectively identify state, regional, and national trends for STEM education and the STEM workforce. 

Unemployment Insurance (UI) wage records, which are filed on a quarterly basis by employers, provide a picture of industry employment and separations, hours worked, and wages.  Unfortunately, UI records are currently a missed opportunity to capture accurate and dynamic occupational data. Done correctly, the inclusion of occupational data in UI wage records would give policymakers, education systems, and all stakeholders insight to national, regional, and local labor markets. Enhanced UI wage records could connect credentials and training to specific occupations and provide career mapping information over the course of changes and shifts to the economy. These records would also allow DOL to better identify the presence and absence of occupational shortages.

Following the recommendations of the U.S. Department of Labor’s Workforce Information Advisory Council, the Administration should commit the federal government to pursuing a phased-in, well-managed, and properly funded process for collecting and analyzing high-quality occupation data via states’ UI systems’ wage records. This policy commitment should be supported with increased funding for research and IT needs at the various state agencies performing education and workforce analysis. The benefit of overhauling and aligning UI records to provide occupational data should be articulated to the business community, education systems, and workers and students in the education-to-workforce pipeline and/or career transition.

DOL Must Ensure Worker Protections For Any Schedule A Occupations

DOL must ensure that professionals hired through a Schedule A occupational designation can feel confident that they will not face employer coercion or workplace abuse if they come to work in the United States. Further, employers who benefit from an exception to the normally-required labor market test must be held to a high-road standard.

The experiences of internationally-recruited nurses showcases the need for strong worker protections in the Schedule A program. These hard working professionals make a positive contribution everyday to the well being of America’s communities. Yet, in return they are regularly exposed to abusive recruitment and employment practices. Too many of the hundreds of thousands of nurses hired through Schedule A over the years were recruited with abusive contract provisions. To be hired with green cards, these nurses are forced to sign multiyear, one-sided contracts that use the threat of financial ruin to bind them to a single employer. Under these contracts, nurses who want to change jobs must pay high “breach” fees.  

DPE believes the coercive practice of “breach fees” and non-compete clauses in employment contracts and the charging of recruitment fees and associated costs to workers must be prohibited. DOL should require that Schedule A employers provide the recruitment contract to any person offered employment before departure to the United States. In addition, workers hired for Schedule A occupations should, prior to departure, receive written information in their native languages on their rights under U.S. workplace laws and how to access these rights. 
Continued Support for High-Road Immigration Policies That Empower Professionals

The Administration must also remain focused on high-road legislative approaches to international recruitment. DPE strongly urges support for the Keep STEM Talent Act, bipartisan legislation that enables talented graduates from U.S. colleges and universities to continue contributing to the American economy while ensuring that they can earn a fair return on their work. Under this legislation, international graduates who earn STEM advanced degrees from American universities are exempt from the annual green card caps so long as their employers receive approved labor certifications and pay them above the median wage level for the occupation and geographic area. The Keep STEM Talent Act offers in-demand graduates a direct path to permanence, rather than forcing them to accept precarious, temporary visas. This approach reinforces the professionalism of the STEM workforce and affords individuals agency in the labor market.  

DPE’s commitment to a high-road immigration system is also why we advocate for policies that empower professionals, including a path to citizenship for recipients of TPS (Temporary Protected Status,) DACA (Deferred Action for Childhood Arrivals) and DED (Deferred Enforced Departure). DPE supports allowing professionals to self-petition for permanent status and providing labor market mobility to individuals with approved I-140s. 

Conclusion

There are better approaches to recruiting and retaining the world’s talent than through expanding Schedule A occupational designations. However, should DOL decide to proceed with possible new Schedule A occupational designations, DPE urges a regular review of indicators that identify actual labor market needs. DPE also urges DOL to adopt guardrails that ensure all professionals, regardless of immigration status, can earn fair, family-supporting pay in an environment free from exploitation.

If you have any questions, please contact DPE Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.

Sincerely, 

Jennifer Dorning, President