[Federal Register Volume 88, Number 244 (Thursday, December 21, 2023)]
[Proposed Rules]
[Pages 88290-88294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27938]



[[Page 88290]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 656

RIN 1205-AC16


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

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Request for information.

-----------------------------------------------------------------------

SUMMARY: The Department of Labor's (Department or DOL) Employment and 
Training Administration (ETA) is considering revisions to Schedule A of 
the permanent labor certification process to include occupations in 
Science, Technology, Engineering and Mathematics (STEM) and other non-
STEM occupations and invites employers and other interested parties to 
comment on this Request for Information (RFI). ETA's Office of Foreign 
Labor Certification developed this RFI and is publishing it for comment 
so that the public may provide input, including data, statistical 
metrics or models, studies, and other relevant information, on how the 
Department may establish a reliable, objective, and transparent 
methodology for revising Schedule A to include STEM and other non-STEM 
occupations that are experiencing labor shortages, consistent with 
requirements of the Immigration and Nationality Act (INA). The 
Department wants to ensure that it is striking an appropriate balance 
between the need to provide U.S. workers notice of available permanent 
job opportunities and the opportunity to apply for those job 
opportunities, and, where insufficient U.S. workers are available to 
satisfy an employer's need for permanent labor, the need to provide 
employers access to foreign labor through effective administration of 
the permanent labor certification program. Information received from 
the public will help inform decisions regarding whether or how to 
improve Schedule A and ensure that its purpose in responding to 
national labor shortages is more effectively met.

DATES: Submit written comments on or before February 20, 2024.

ADDRESSES: You may submit written comments electronically by the 
following method:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions on the website for submitting comments.
     Instructions: Include the docket number ETA-2023-0006 in 
your comments. All comments received will be posted without change to 
https://www.regulations.gov. Please do not include any personally 
identifiable or confidential business information you do not want 
publicly disclosed.

FOR FURTHER INFORMATION CONTACT: For further information, contact Brian 
Pasternak, Administrator, Office of Foreign Labor Certification, 
Employment and Training Administration, Department of Labor, 200 
Constitution Avenue NW, N-5311, Washington, DC 20210; Telephone (202) 
513-7350 (this is not a toll-free number). For persons with a hearing 
or speech disability who need assistance to use the telephone system, 
please dial 711 to access telecommunications relay services.

SUPPLEMENTARY INFORMATION:

I. Legal Framework

    Section 212(a)(5)(A) of the INA, 8 U.S.C. 1182(a)(5)(A), deems 
inadmissible certain foreign nationals who seek to enter the United 
States for purposes of employment, unless the Secretary of Labor first 
certifies that: (1) there are insufficient U.S. workers at the place 
where the foreign worker would be employed who are able, willing, 
qualified and available for the job the foreign worker seeks; and (2) 
employment of the foreign worker would not adversely affect the wages 
and working conditions of U.S. workers in similar jobs.\1\
---------------------------------------------------------------------------

    \1\ See also 20 CFR 656.1 and 656.2.
---------------------------------------------------------------------------

    In an effort to address the workforce needs of employers at a time 
when the U.S. economy was rapidly expanding, the Department first 
established a mechanism in the mid-1960s by regulation for pre-
certifying job vacancies of occupations for which U.S. workers were in 
short supply nationwide, which became known as Schedule A of the 
permanent labor certification program.\2\ Schedule A is set forth in 
the Department's permanent labor certification regulations at 20 CFR 
656.5 and enumerates a list of occupations for which the Department has 
predetermined that the statutory requirements have been met. The 
occupations currently listed in Schedule A are divided into two groups. 
Group I consists of physical therapists and professional nurses; Group 
II consists of occupations that require foreign workers to possess 
exceptional ability in the sciences, arts, or performing arts.\3\ An 
employer seeking to hire foreign nationals in shortage occupations on 
Schedule A is able to forego the need to test the labor market normally 
required under the Department's process for permanent labor 
certification, is able to bypass filing an application for permanent 
employment certification with the Department, and instead files an 
uncertified application for permanent employment certification directly 
with U.S. Citizenship and Immigration Services (USCIS) at the time the 
employer files its immigrant visa petition, or Immigrant Petition for 
Alien Workers, Form I-140.\4\
---------------------------------------------------------------------------

    \2\ See 30 FR 14979 (Dec. 3, 1965) (publishing initial Schedule 
A).
    \3\ See 20 CFR 656.5(b) and 656.15(d); see also See Final Rule, 
Labor Certification Process for the Permanent Employment of Aliens 
in the United States, 42 FR 3440 (Jan. 18, 1977), available at 
https://www.dol.gov/sites/dolgov/files/OALJ/PUBLIC/INA/REFERENCES/FEDERAL_REGISTER/42_FED._REG._3440_(JAN._18,_1977).PDF (establishing 
the initial framework for Group II).
    \4\ See 8 CFR 204.5(k)(4)(i); 8 CFR 204.5(l)(3)(i); see also 20 
CFR 656.15.
---------------------------------------------------------------------------

II. Background

    Schedule A was proposed in 1965 by the Secretary of Labor via 
rulemaking modifying then 29 CFR 60.2: ``Certification and 
noncertification schedules. (a) Determination. To reduce the delay in 
processing an alien's request for visa, the determination has been made 
by the Secretary of Labor pursuant to section 212(a)(14) that: (1) For 
the categories of employment described in Schedule A and in the 
geographic areas therein set forth, there are not sufficient workers 
who are able, willing, qualified, and available for employment in such 
categories, and the employment of aliens in such categories and in such 
areas will not adversely affect the wages and working conditions of 
workers in the United States similarly employed.'' \5\ Historically, 
the post-1965 permanent labor certification program, by design, relied 
on labor market statistics compiled by state employment service 
offices. The Department used that information as the basis for Schedule 
A. In the 1960s and 1970s, Schedule A was the product of an extensive 
process of economic and labor market analysis of employment demand and 
supply by the Department. Schedule A occupations were later identified 
through the application of multiple factors, including unemployment 
rates; occupational

[[Page 88291]]

projections; evidence submitted by trade associations, employers and 
organized labor; and technical reviews by Federal and State staff with 
expertise in these areas.\6\ The occupational listings in the Schedule 
were reviewed and modified at regular intervals to reflect changing 
economic and labor market conditions and to prevent adverse effects on 
the wages or working conditions of U.S. workers. Schedule A has been 
revised eight times, the last time in 2004.\7\ The most recent 
revisions to Schedule A listings in 2004 only added foreign workers of 
exceptional ability in the performing arts to Group II; the other 
revision in 2004 was procedural and clarified the professional 
qualifications for eligible nurses under Schedule A.\8\ Some comments 
requesting the expansion of Schedule A listings in 2004 were rejected 
because the suggestions exceeded the scope of the proposal.
---------------------------------------------------------------------------

    \5\ Notice of Proposed Rulemaking, Availability of and Adverse 
Effect Upon American Workers, 30 FR 14494, 14494 (Nov. 19, 1965), 
available at https://www.govinfo.gov/content/pkg/FR-1965-11-19/pdf/FR-1965-11-19.pdf.
    \6\ See Proposed Rule, Labor Certification Process for the 
Permanent Employment of Aliens in the United States; Labor Market 
Information Pilot Program, 58 FR 15242, 15242 (Mar. 19, 1993), 
available at https://www.govinfo.gov/content/pkg/FR-1993-03-19/pdf/FR-1993-03-19.pdf.
    \7\ See, e.g., 31 FR 16412 (Dec. 23, 1966), 33 FR 12808 (Sept. 
10, 1968), 36 FR 2462 (Feb. 4, 1971), 42 FR 3440 (Jan. 18, 1977), 45 
FR 83933 (Dec. 19, 1980), 52 FR 20593 (June 2, 1987), 56 FR 54920 
(Oct. 23, 1991), and 69 FR 77326 (Dec. 27, 2004).
    \8\ 69 FR 77326, 77333.
---------------------------------------------------------------------------

    In part because Schedule A has not been comprehensively examined or 
modified in approximately three decades, and in part because Schedule A 
by definition allows employers to bypass filing an application for a 
labor certification, the Department does not have comprehensive data on 
how employers utilize Schedule A and the types of work performed 
thereunder.
    In order to help gather evidence about how to determine whether to 
expand or alter Schedule A, the Department is seeking information from 
the public that will help inform this decision. In this RFI, the 
Department provides an overview of key research, data, and trends 
related to STEM occupations. We also welcome comments from the public 
on non-STEM occupations, including those that may be related to but not 
traditionally considered STEM occupations as well as those that are 
outside of the STEM arena but nonetheless may also face labor 
shortages.
    Anecdotal evidence and industry research suggest that economic and 
labor market conditions have changed for certain industries and 
occupations that rely on foreign workers and various visa programs, 
especially in the area of STEM occupations, including occupations in 
the field of artificial intelligence (AI).\9\ In particular, jobs in 
the STEM fields often require a bachelor's degree or higher, leaving 
few opportunities for workers younger than 25 who do not have a 
bachelor's degree.\10\ As a result, in 2021, workers between the ages 
of 16 and 24 made up 12.7 percent of total employment across all 
occupations but only 6.8 percent of all STEM workers in the United 
States.\11\ STEM opportunities for young workers without a college 
degree do exist, but they mostly fall in technician occupations. 
Technician jobs are an important part of meeting future demand, but 
they do not address the demand for jobs which require a Bachelor's 
degree or higher. For instance, workers in that age group accounted for 
21.8 percent of all life, physical and social science technicians in 
the United States. A smaller percentage of younger workers held STEM 
jobs as life scientists (4 percent) or social scientists (2.1 
percent).\12\ Within the various technician-related occupations 
approximately 15 percent of workers in this age group were employed as 
agricultural and food science technicians, biological technicians or 
chemical technicians with another 8 percent serving as environmental 
science and geoscience technicians.\13\ Under several Administrations, 
efforts have been and are presently being made at various levels, as a 
result of federal government, state government, and industry and non-
profit initiatives, to attract and train young workers as technicians 
in STEM fields, such as through Registered Apprenticeship programs 
provided by the Department's Apprenticeship USA program and nonprofit 
organizations and by community colleges.\14\
---------------------------------------------------------------------------

    \9\ On October 30, 2023, President Joseph R. Biden Jr. issued 
the Executive Order on the Safe, Secure, and Trustworthy Development 
and Use of Artificial Intelligence (AI E.O.), which defines AI at 
section 3(b). E.O. 14110, 88 FR 75191, 75193 (Nov. 1, 2023), 
available at https://www.federalregister.gov/documents/2023/11/01/2023-24283/safe-secure-and-trustworthy-development-and-use-of-artificial-intelligence.
    \10\ See Laughlin, L. et al., Who Are the STEM Workers Under Age 
25?: Technician Is A Common Job Among Young STEM Workers, U.S. 
Census Bureau (Nov. 22, 2022), available at https://www.census.gov/library/stories/2022/11/stem-workers-under-age-25.html.
    \11\ See id.
    \12\ See id.
    \13\ See id.
    \14\ See, e.g., Daniel Kuh, Ian Heckler and Alphonse Simeon, 
Registered Apprenticeship in Science and Engineering (May 2019), 
available at https://www.urban.org/sites/default/files/publication/100390/registered_apprenticeship_in_science_and_engineering.pdf, and 
U.S. Department of Labor, Apprenticeship USA, available at https://www.apprenticeship.gov/events/diversity-stem-session-iv-innovation-today-and-tomorrow.
---------------------------------------------------------------------------

    While ETA is familiar with the BLS's Occupational Employment Wage 
Statistics (OEWS) data and Employment Projections data,\15\ as well as 
the U.S. Census Bureau's (Census Bureau) American Community Survey 
(ACS) data and Current Population Survey (CPS) data, these data sources 
alone do not appear to be sufficient for determining appropriate 
revisions to Schedule A. None of the datasets of OEWS, CPS, and ACS or 
projections is designed to identify potential labor shortages, as 
identifying such shortages requires knowing about labor demand, labor 
supply, and how they interact. However, employment surveys or 
projections cannot indicate unmet demand because they only record the 
demand that has been met.\16\
---------------------------------------------------------------------------

    \15\ A complete list of OEWS occupations included in the STEM 
definition by the Bureau of Labor Statistics (BLS) is available at 
https://www.bls.gov/oes/stem_list.xlsx; however, different studies, 
research, and sources referenced herein might construe the 
definition of a STEM occupation more narrowly or more broadly than 
BLS. See, e.g., Bureau of Labor Statistics, Standard Occupational 
Classification, About 2018 SOC System, Options for Defining STEM 
Occupations Under the 2018 SOC, Attachments B and C, available at 
https://www.bls.gov/soc/Attachment_B_STEM_2018.pdf and https://www.bls.gov/soc/Attachment_C_STEM_2018.pdf.
    \16\ See Ass'n of Science and Technology Centers, U.S. Federal 
Agencies and STEM Engagement, available at https://www.astc.org/impact-initiatives/advocacy/federal-agencies/.
---------------------------------------------------------------------------

    Over the last decade, the federal government has taken steps toward 
diversifying the pipeline of STEM talent in the United States, 
primarily supporting STEM education opportunities for historically 
underrepresented groups in these fields.\17\ According to the U.S. 
Government Accountability Office,\18\ the America Creating 
Opportunities to Meaningfully Promote Excellence in Technology, 
Education, and Science Act (COMPETES Act) was passed with the overall 
goal of increasing federal investment in scientific research to improve 
U.S. economic competitiveness and increased support for education in 
STEM fields.\19\ The COMPETES Act was signed into law on August 9, 
2007. The COMPETES Act authorized various

[[Page 88292]]

programs at the National Science Foundation (NSF) and the Departments 
of Energy, Commerce, and Education intended to strengthen STEM 
education and research in the United States. Since its inception, the 
COMPETES Act has been reauthorized numerous times as various 
organizations have discovered that the United States's competitiveness 
in STEM education has deteriorated relative to advances by other 
countries. The most recent reauthorization, which took place in 2022, 
added several provisions to strengthen and expand the U.S. STEM 
workforce and ensure that it more accurately reflects the diversity of 
the nation.\20\
---------------------------------------------------------------------------

    \17\ See U.S. Gov't Accountability Office, Diversifying the 
Pipeline of STEM Talent (Jun. 18, 2018), available at https://
www.gao.gov/blog/2018/06/19/diversifying-the-pipeline-of-stem-
talent#:~:text=Over%20the%20last%20decade%2C%20the%20federal%20govern
ment%20has,opportunities%20for%20historically%20underrepresented%20gr
oups%20in%20these%20fields.
    \18\ See U.S. Gov't Accountability Office, America COMPETES Act: 
It Is Too Early to Evaluate Programs Long-Term Effectiveness, but 
Agencies Could Improve Reporting of High-Risk, High-Reward Research 
Priorities (Oct. 7, 2010), available at https://www.gao.gov/products/gao-11-127r.
    \19\ See 42 U.S.C. 6621.
    \20\ See id.; see also Public Law 111-358, title I, sec. 101, 
124 Stat. 3984 (Jan. 4, 2011), Public Law 114-329, title III, sec. 
304 (Jan. 6, 2017); and Public Law 117-167, div. B, title V, sec. 
10522(e) (Aug. 9, 2022).
---------------------------------------------------------------------------

    The Department notes that various articles and studies have been 
written and conducted outlining reasons why there has been a STEM 
shortage in the United States including: a lack of interest in STEM 
occupations, a STEM branding problem with younger generations, and 
employers' lack of access to foreign talent.\21\
---------------------------------------------------------------------------

    \21\ See, e.g., Weiner, B., Why the U.S. Has a STEM Shortage and 
How We Fix it (Part 1), Recruiting Daily (Nov. 6, 2018), available 
at https://recruitingdaily.com/why-the-u-s-has-a-stem-shortage-and-how-we-fix-it-part-1/ and Pagllieri, G., STEM Hiring Trends in 2022: 
What Employers Need to Know, Randstad (Feb. 8, 2022), available at 
https://www.randstadusa.com/business/business-insights/future-workplace-trends/stem-hiring-trends-2022-what-employers-need-to/.
---------------------------------------------------------------------------

    Executive Order 13806, published in 2017, directs the Secretary of 
Defense to conduct a government-wide risk analysis of manufacturing and 
the defense industrial base and propose recommendations to improve 
economic and national security.\22\ In 2021, the U.S. Department of 
Defense (DOD) assessed the macroeconomic forces affecting the U.S. 
industrial base in response to Executive Order 13806 and outlined 
several problems, included diminishing STEM education.\23\ DOD found 
that the United States is graduating fewer students with STEM degrees 
as a percentage of population compared to China and that the United 
States no longer has the most STEM graduates worldwide, as it is being 
rapidly outpaced by China.\24\ The report also noted that, as of 2017, 
American students made up approximately 21 percent of the computer 
science student body and 19 percent of electrical engineering majors 
among the nation's universities. In support of the DOD's conclusion 
that STEM-focused sectors are struggling to attract and retain top-tier 
technical talent from the United States,\25\ data from the National 
Science Board (NSB) reveals that more than one-half of all graduates of 
engineering, computer science, and mathematics doctoral programs at 
U.S. universities are foreign-born, as universities are turning to 
foreign students to address a shortfall of U.S. candidates for those 
programs.\26\ Many of these foreign-born, U.S.-educated and trained 
students entering the U.S. workforce have become U.S. permanent 
residents or U.S. citizens, leading the NSB to conclude that 
``immigration represents a key component to building the capacity of 
the U.S. STEM workforce.'' \27\
---------------------------------------------------------------------------

    \22\ Assessing and Strengthening the Manufacturing and Defense 
Industrial Base and Supply Chain Resiliency of the United States, 82 
FR 34597 (Jul. 21, 2017), available at https://www.federalregister.gov/documents/2017/07/26/2017-15860/assessing-and-strengthening-the-manufacturing-and-defense-industrial-base-and-supply-chain.
    \23\ See Fiscal Year 2020 Industrial Capabilities Report, Dept. 
of Defense (January 14, 2021), p. 13, available at https://www.defense.gov/News/Releases/Release/Article/2472854/dod-releases-industrial-capabilities-report/.
    \24\ Id. at p. 102. See also id. at p. 15 (``Ultimately, the 
most important asset [the U.S.] defense industrial base possesses 
isn't machines or facilities, but people. America needs an ambitious 
effort, like the Eisenhower National Defense Education Act, to 
support education and training for manufacturing skills required to 
meet DoD and wider U.S. requirements. As the Industrial Capabilities 
Report notes, while China has four times the U.S. population, it has 
eight times as many STEM grads, while Russia has almost four times 
more engineers than the United States. [The United States has] lost 
ground also in many equally important touch labor industrial skills 
sets.'')
    \25\ Id. at pp. 86 (``Promising STEM and trade-skill oriented 
personnel are leaving the sector industry for other occupations. 
Individuals with these skills are becoming harder to recruit and 
retain due to barriers of pay, location, and cyclical sector 
demand.'') and 113 (``In keeping with priorities articulated by 
executives, workforce-related efforts undertaken by the U.S. 
Services due to the coronavirus pandemic focused on retaining rather 
than growing or enhancing the industrial workforce.'')
    \26\ See The STEM Workforce of Today: Scientists, Engineers, and 
Skilled Technical Workers, National Science Board (Aug. 31, 2021), 
at p. 72, available at https://ncses.nsf.gov/pubs/nsb20212/assets/nsb20212.pdf.
    \27\ Id. at p. 9.
---------------------------------------------------------------------------

    Subsequently, a non-profit organization, produced an analysis of 
data from the Census Bureau stating that foreign-born STEM workers have 
made important contributions to the U.S. economy in terms of 
productivity and innovation.\28\ Its research found that, as the demand 
for STEM workers continues to increase, foreign-born STEM workers will 
likely continue to complement the U.S. workers and play a key role in 
U.S. productivity and innovation.\29\
---------------------------------------------------------------------------

    \28\ See Fact Sheet, Foreign-Born Workers in the United States, 
American Immigration Council (Jun. 14, 2022), available at https://www.americanimmigrationcouncil.org/research/foreign-born-stem-workers-united-states.
    \29\ Id. (citing microdata from the U.S. Census Bureau's 2000, 
2010, and 2019 American Community Surveys).
---------------------------------------------------------------------------

    At the same time that the U.S. has shown greater reliance on 
foreign workers and foreign-born U.S.-educated workers, the U.S. is 
undergoing significant demographic changes indicating that the U.S. 
faces many challenges in supplying its own domestic STEM workforce. In 
2017, a scientific journal determined that the U.S. had seen 
significant demographic trends with an aging STEM workforce that saw a 
decline in scientists ages 35 to 53 and a rise in scientists older than 
53 between 1993 and 2010.\30\ The report points out that during the 
same time period the average age of the scientific workforce increased 
from 45.1 to 48.6, whereas the average age of the general workforce 
only increased from 42.2 to 45.4, indicating that the STEM workforce is 
both older and is aging more rapidly.\31\ Private sector studies have 
found that, as the ``baby boomer'' generation moves into retirement, 
millennials \32\ will compose the largest share of the labor market. 
Millennials, however, are not showing an increased tendency to major in 
high-demand areas of STEM fields despite a higher proportion of this 
population choosing to attend college.\33\ These studies suggest that 
younger generations trail older generations in choosing STEM majors, 
except for computer and information services, instead 
disproportionately choosing to major in business, health professions, 
and visual and performing arts compared to older generations.\34\
---------------------------------------------------------------------------

    \30\ See Blau, David M. and Weinberg, Bruce A., Why the U.S. 
Science and Engineering Workforce Is Again Rapidly, Proceedings of 
the Nat'l Academy of Sciences of the United States of America (Apr. 
11, 2017), pp. 3379-84, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5393244/pdf/pnas.201611748.pdf (citing data from the 
1993-2010 Surveys of Doctorate Recipients of the National Science 
Foundation, available at https://nsf.gov/statistics/srvydoctoratework/).
    \31\ Id. at p. 3380.
    \32\ See Dimock, M., Defining Where Millennials End and 
Generation Z Begins, Pew Research Center (Jan. 17, 2019), available 
at https://www.pewresearch.org/fact-tank/2019/01/17/where-millennials-end-and-generation-z-begins/.
    \33\ See Deloitte Insights, Issues By the Numbers, A New 
Understanding of Millennials: Generational Differences Reexamined, 
Deloitte Univ. Press (Oct. 2015), p. 2, available at https://www2.deloitte.com/content/dam/insights/us/articles/understanding-millennials-generational-differences/DUP1276_Millennials_report_MASTER_101615.pdf.
    \34\ Id. at p. 4.
---------------------------------------------------------------------------

    According to BLS data of job openings, hires, separations, and 
total employment in the United States, employment growth is projected 
to slow

[[Page 88293]]

over the next decade because of slowing population growth and changing 
demographics. The data outlined that the labor force participation rate 
for those ages 65 years and older is expected to increase to 23.3 
percent in 2028, up from 19.6 percent in 2018 due to lack of sufficient 
retirement savings and employer-provided health insurance and 
employers' increased willingness to hire and retain older workers who 
may have institutional knowledge that is not easily replaceable, while 
the labor force participation of those ages 16-24 is expected to 
decline during that same period.\35\
---------------------------------------------------------------------------

    \35\ See Dubina, Kevin S. et al., Projections Overview and 
Highlights, 2018-2028, Bureau of Labor Statistics Monthly Labor 
Review (Oct. 2019), available at https://www.bls.gov/opub/mlr/2019/article/projections-overview-and-highlights-2018-28.htm#top.
---------------------------------------------------------------------------

    These trends are also more pronounced for certain demographics. For 
example, additional analysis finds women are underrepresented in STEM 
careers and are being hindered in STEM by social barriers, like gender 
stereotypes and lack of representation, and discouragement.\36\ 
According to a management consulting firm, the next wave of efficiency 
gains in global manufacturing will be driven by digitalization and big 
data on the shop floor, which will require more skilled workers with 
STEM knowledge, problem solving skills, and programming 
familiarity.\37\ Additionally, the Census Bureau states that women make 
up approximately 47 percent of the American workforce but only 30 
percent work in manufacturing. Among ways the manufacturing industry 
has been attracting more women are attempts to reduce the gender gap is 
by encouraging girls to study STEM subjects at a young age.\38\
---------------------------------------------------------------------------

    \36\ See Meyer B. and Daugherty, J., Paving the Way to Gender 
Equity Through STEM Education, U.S. Chamber of Commerce Foundation 
(Mar. 3, 2021), available at https://www.uschamberfoundation.org/blog/post/paving-way-gender-equity-through-stem-education.
    \37\ See Kautzsch, T. and Chien A., Bringing Manufacturing Jobs 
Back to the US?, Oliver Wyman, available at https://www.oliverwyman.com/our-expertise/insights/2017/nov/perspectives-on-manufacturing-industries-vol-12/manufacturing-in-a-changing-world/bringing-manufacturing-jobs-back-to-the-US.html.
    \38\ See Dowell, Earlene K.P., Manufacturing Opens More Doors to 
Women, U.S. Census Bureau (Oct. 3, 2022), available at https://www.census.gov/library/stories/2022/10/more-women-in-manufacturing-jobs.html.
---------------------------------------------------------------------------

    Furthermore, there remain significant racial disparities in the 
technical workforce among women.\39\ Recent surveys have shown that 
Black and Hispanic U.S. workers are vastly underrepresented in the STEM 
workforce.\40\ According to an August 31, 2021, NSB report females with 
their highest degree in science and engineering (S&E) tend to work 
proportionately less in S&E occupations compared to men. Among women in 
S&E there are also tremendous disparities, with 45 percent of Asian 
women with such degrees working in STEM, compared to 24 percent, 22 
percent, and 15 percent respectively for white, Hispanic or Latino, and 
Black women.\41\ The U.S. Chamber of Commerce noted that the NSF 
implemented a strategy to address these issues through a newly funded 
Community College Presidents' Initiative in STEM Education by 
introducing STEM programs at the earliest stages of post-secondary STEM 
education as community colleges serve the most diverse student body in 
higher education and serve as a gateway to further higher 
education.\42\
---------------------------------------------------------------------------

    \39\ See Boggs G., et al., Addressing the STEM Workforce 
Shortage, U.S. Chamber of Commerce Foundation (Oct. 17, 2022), 
available at https://www.uschamberfoundation.org/blog/post/addressing-stem-workforce-shortage (``Women are underrepresented in 
several STEM occupations, particularly in computer jobs and 
engineering. The racial and gender inequalities have significant 
income implications. Even among workers with similar education, STEM 
workers earn significantly more. At a time when we need to address 
STEM labor shortages, we cannot afford to leave segments of our 
population behind.'' (citing data from The Skilled Technical 
Workforce: Creating America's Science and Engineering Enterprise, 
National Science Board (Sept. 3, 2019), available at https://www.nsf.gov/nsb/publications/2019/nsb201923.pdf).
    \40\ See Funk C. and Parker, K., Women and Men in STEM Often at 
Odds Over Workplace Equity, Pew Research Center (Jan. 18, 2019), p. 
24, available at https://www.pewresearch.org/social-trends/wp-content/uploads/sites/3/2018/01/PS_2018.01.09_STEM_FINAL.pdf. 
(``Blacks make up 11% of the U.S. workforce overall but represent 9% 
of STEM workers, while Hispanics comprise 16% of the U.S. workforce 
but only 7% of all STEM workers. And among employed adults with a 
bachelor's degree or higher, Blacks are just 7% and Hispanics are 6% 
of the STEM workforce.'')
    \41\ See The STEM Workforce of Today: Scientists, Engineers, and 
Skilled Technical Workers, National Science Board (Aug. 31, 2021), 
p. 69, Intersectionality In Stem, available at https://ncses.nsf.gov/pubs/nsb20212/participation-of-demographic-groups-in-stem (``Female S&E highest degree holders tend to work 
proportionately less in S&E occupations (26%) compared to men (45%) 
(Figure LBR-30; Table SLBR-32). However, the extent to which women 
with their highest degree in an S&E field worked in S&E occupations 
varied by race or ethnicity. Among women with their highest degree 
in an S&E field, Asian women worked proportionately more in S&E 
occupations (45%) compared to White (24%), Hispanic or Latino (22%), 
other races or ethnicities (21%), and Black or African American 
women (15%) (Figure LBR-30).'')
    \42\ See Community College Presidents' Initiative in STEM 
Education, Resources, available at https://www.ccpi-stem.org/resources/ and Sdavkovich V. et al., Have You Heard About the 
Community College Presidents' Initiative in STEM?, HigherEdJobs (May 
31, 2022), available at https://www.higheredjobs.com/articles/articleDisplay.cfm?ID=3065 (citing Fast Facts 2022, American 
Association of Community Colleges (May 11, 2022), available at 
https://www.aacc.nche.edu/research-trends/fast-facts/ (``51 percent 
of community college students taking college credit classes are 
students of color.''))
---------------------------------------------------------------------------

    Not only is the United States facing headwinds in developing enough 
U.S.-born students pursuing STEM careers to replace those entering 
retirement, but broader market trends also suggest that the need for 
STEM workers will increase in future years. The growth rate of 
employment in STEM fields is projected to expand significantly--
specifically, by 10.8 percent through 2032, compared to 2.8 percent for 
all occupations.\43\ Although growth in STEM occupations is led by 
substantial increases in mathematical science occupations (29.2 
percent) and computer occupations (14.2 percent), the expected growth 
for every major STEM occupational classification is expected to exceed 
the growth for all occupations.\44\
---------------------------------------------------------------------------

    \43\ See Bureau of Labor Statistics, Employment Projections: 
Employment in STEM Occupations, Table 1.7, Occupational Projections, 
2022-32, and Worker Characteristics, 2022 (Numbers in Thousands), 
available at https://www.bls.gov/emp/tables/occupational-projections-and-characteristics.htm, and Table 1.11, Employment in 
STEM Occupations, 2022 and Projected 2032 (Sept. 6, 2023), available 
at https://www.bls.gov/emp/tables/stem-employment.htm.
    \44\ Id. at Table 1.7. (In addition to those two occupations, 
BLS projects increases as well for physical scientists (5.3%), STEM 
post-secondary teachers (6.8%), life scientists (7.1%), and 
engineers (6.9%), all of which exceed the 2.8% average growth across 
all occupations.)
---------------------------------------------------------------------------

    However, the NSB, in its analysis of the U.S. STEM labor force, 
argued that new scientific and technological advancements and 
discoveries, such as quantum technologies, space exploration, and 
medical vaccines, are ``rapidly changing the world of work and, as a 
result, continue to challenge the traditional framework used to define 
the STEM labor force in the United States.'' \45\ The basis of this 
report introduced a limited analysis of the skilled technical workforce 
(STW)

[[Page 88294]]

which included occupations that require a high level of knowledge in a 
technical domain but did not require a bachelor's degree.\46\ As a 
result, the NSB suggested to broaden the definition of STEM to include 
workers without a bachelor's degree who are employed in S&E, S&E-
related, and non-STEM middle-skill occupations.\47\ The NSB also argued 
that building a STEM workforce demanded expanding the definition of 
STEM to include middle-skill occupations, such as construction, 
extraction, and production, pointing out that the 2019 ACS survey that 
finds nearly 20 million STEM workers without a bachelor's degree worked 
in middle-skill occupations.\48\ Furthermore, others have argued that 
the COVID-19 outbreak has resulted in shortfalls of STEM workers and 
suggested that immigration can alleviate those shortages.\49\ Upon 
review of BLS' Job Openings and Labor Turnover Survey (JOLTS), 
reflecting the number of yearly job openings measured as an annual mean 
to monthly job openings, one organization argued that the shortfalls of 
STEM workers has been building continuously since 2020 and cannot be 
solved through the domestic workforce.\50\
---------------------------------------------------------------------------

    \45\ See supra note 26, at pp. 7 (``As such, the STEM workforce 
described in this report includes occupations that have historically 
been known to require STEM skills and expertise (e.g., life 
sciences, physical sciences, engineering, mathematics and computer 
sciences, social sciences, and health care) as well as occupations 
that are not typically considered STEM fields but that do, in fact, 
require STEM skills (e.g., installation, maintenance and repair, 
construction trades, and production occupations))'' and 11; see also 
supra note 10. Non-STEM occupations primarily include occupations in 
management (excluding S&E and S&E-related managers, industrial 
production managers, and farmers, ranchers, and agricultural 
managers), sales (excluding sales engineers), transportation and 
material moving (excluding transportation inspectors and pumping 
station operators), office and administrative support, and education 
and training. See Table SLBR-1 for a full list of non-STEM 
occupations.
    \46\ Id.
    \47\ Id.; see also Employed Adults in STEM and Non-STEM 
Occupations, by Broad and Detailed Occupation: 2019, available at 
https://ncses.nsf.gov/pubs/nsb20212/data/table/SLBR-1#.
    \48\ Compare supra note 26, at p. 11, with supra note 43 (noting 
BLS employment projections rank construction as the industry sector 
with the third highest projected growth over the next 10 years 
behind health care and education services). See also U.S. Census 
Bureau, American Community Survey (ACS), available at https://www.census.gov/programs-surveys/acs.
    \49\ See Esterline, C., The Case for Updating Schedule A, 
Niskanen Center (Oct. 2022), available at https://www.niskanencenter.org/wp-content/uploads/2022/10/PolicyBriefTHE-CASE-FOR-UPDATING-SCHEDULE-A.pdf (highlighting specific benefits of 
using Schedule A during COVID pandemic); see, e.g., Peri G. and 
Zaiour, R., Labor Shortages and the Immigration Shortfall, Econofact 
(Jan. 11, 2022), available at https://econofact.org/labor-shortages-and-the-immigration-shortfall and Kenan Institute of Private 
Enterprise, Why America Needs High Skill Immigrants, Kenan Insight 
(Jul. 22, 2020), available at https://kenaninstitute.unc.edu/kenan-insight/why-america-needs-high-skilled-immigrants/ (discussing need 
for expanding immigration during the COVID pandemic).
    \50\ See Esterline, supra note 49, at pp. 3 (``According to 
BLS's JOLTS, from 2011 to 2021 the number of job openings increased 
on average 12 percent per year accounting for the downturn seen in 
early 2020. Further data from BLS's JOLTS points that in August 2022 
approximately 6 million Americans were unemployed, yet job openings 
in the same month exceeded 10 million.'') and 8 (``While much can 
and should be done to improve STEM education in the United States or 
to increase the matching potential between American skills and 
interests and current job openings, the statistics still show that 
this alone will likely not be enough.'').
---------------------------------------------------------------------------

    In evaluating the utility of expanding Schedule A to include STEM 
occupations, the Department invites the public to provide input on the 
appropriate data sources and methods for determining whether labor 
shortages exist, whether Schedule A should be used to alleviate any 
labor shortages in STEM occupations should it be determined from these 
data sources and methods that such shortages exist, and if so, how the 
Department could establish a reliable, objective, and transparent 
methodology for identifying STEM occupations that are experiencing 
labor shortages. Additionally, the Department invites the public to 
provide input on whether to limit examination of STEM only to those 
OEWS occupations used in most of the recent BLS publications,\51\ or 
whether the STEM occupations should be expanded to include additional 
occupations that cover STW occupations, and whether it is justifiable 
to find for each such occupation that there are not and will not be 
sufficient U.S. workers ready, willing, able and qualified to perform 
positions in those occupations nationwide, considering significant 
government and private sector investment in STEM education and research 
to enhance STEM labor market participation among U.S. workers generally 
and among underrepresented groups specifically. Similarly, the 
Department encourages the public to provide input as to whether there 
are non-STEM occupations which should be added to Schedule A and, if 
such occupations exist, to provide the data sources and methods of 
determining such shortages exist. This input will assist the Department 
in fulfilling its obligation under the INA to ensure the employment of 
foreign workers will not adversely affect the wages and working 
conditions of U.S. workers. Information received from the public will 
help inform decisions regarding whether or how to improve Schedule A 
and ensure that its purpose in responding to national labor shortages 
is more effectively met.
---------------------------------------------------------------------------

    \51\ Bureau of Labor Statistics, Occupational Employment and 
Wage Statistics (Feb. 4, 2022), available at https://www.bls.gov/oes/topics.htm#stem.
---------------------------------------------------------------------------

    The Department invites general comments and suggestions concerning:
    (A) whether any STEM occupations should be added to Schedule A, and 
why; and
    (B) defining and determining which occupations should be considered 
as falling under the umbrella of STEM, and why.
    The Department is also specifically seeking input on the questions 
listed below.\52\ To the extent possible and wherever appropriate, 
responses to this RFI should indicate the question number(s) and 
include specific information, data, statistical models and metrics, and 
any resources relied on in reaching conclusions for its claims, rather 
than relying on general observations.
---------------------------------------------------------------------------

    \52\ The Department's issuance of this RFI and the input sought 
in this request are consistent with the AI E.O., which directed the 
Secretary of Labor, within 45 days of issuance the AI E.O., to 
publish a RFI soliciting public input to identify AI and other STEM-
related occupations, as well as additional occupations across the 
economy, for which there is an insufficient number of ready, 
willing, able, and qualified U.S. workers for purposes of updating 
Schedule A. See AI E.O., supra note 9, at Sec. 5(e).
---------------------------------------------------------------------------

    Accordingly, the Department invites the public to answer one or 
more of the following questions in their submissions:
    1. Besides the OEWS, ACS, and CPS, what other appropriate sources 
of data are available that can be used to determine or forecast 
potential labor shortages for STEM occupations by occupation and 
geographic area?
    2. What methods are available that can be used alone, or in 
conjunction with other methods, to measure presence and severity of 
labor shortages for STEM occupations by occupation and geographic area?
    3. How could the Department establish a reliable, objective, and 
transparent methodology for identifying STEM occupations with 
significant shortages of workers that should be added to Schedule A?
    4. Should the STEM occupations potentially added to Schedule A be 
limited to those OEWS occupations used in most of the recent BLS 
publications, or should the STEM occupations be expanded to include 
additional occupations that cover STW occupations?
    5. Beyond the parameters discussed for STW occupations, should the 
Department expand Schedule A to include other non-STEM occupations? If 
so, what should the Department consider to establish a reliable, 
objective, and transparent methodology for identifying non-STEM 
occupations with a significant shortage of workers that should be added 
to or removed from Schedule A?

Brent Parton,
Principal Deputy Assistant Secretary for Employment and Training, 
Labor.
[FR Doc. 2023-27938 Filed 12-20-23; 8:45 am]
BILLING CODE 4510-FP-P