Another Exception to Labor Certification: Schedule A Petitions
In addition to the National Interest Waiver option addressed in a previous blog, aliens may also take advantage of the Schedule A labor certification rules. Technically speaking, Schedule A is not an exception to the labor certification process. Rather, Schedule A identifies certain occupations that are pre-certified by the Department of Labor as having insufficient numbers of able, willing, qualified, and available U.S. workers.
Unlike National Interest Waiver applicants, Schedule A applicants require employer sponsorship and therefore cannot self-petition. Schedule A is divided into two groups, each with two subcategories.
Schedule A Group I – Physical Therapists and Professional Nurses
Physical therapists must prove that they possess all qualifications necessary to take the appropriate physical therapist licensing exams in the state in which they propose to practice physical therapy.
For professional nurses, the requirements are more strict. These individuals must prove the following 3 requirements:
- Possession of a certificate from the Commission on Graduates in Foreign Nursing Schools (CGFNS);
- Proof that the alien has passed the National Council Licensure Examination for Registered Nurses exam; and
- A full and unrestricted license to practice nursing in the state of intended employment.
As stated above, an employer must sponsor the alien seeking an immigrant visa under Schedule A Group I.
Schedule A Group II – Exceptional Ability in Sciences and Arts (not including performing arts) and Performing Arts
Under Group II, aliens of exceptional ability are divided into two groups: Sciences or Arts (not including performing arts) and Performing Arts. First, the alien must establish that she generally satisfies the EB-2 Exceptional Ability requirements. Once that is established, the alien must also prove that the area of Exceptional Ability falls within the definition of “science or art” or is in the performing arts.
Group II applicants may include college and university teachers of exceptional ability, provided that they can establish that they have been practicing their science or art during the year prior to the application and intend to continue practicing that same science or art in the United States. “Science or art” is further defined to include any field of knowledge or skill with respect to which colleges and universities commonly offer courses leading to a degree in the field of knowledge or skill.
For Performing Arts, an alien must prove that his work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.
The Schedule A Group II option can be particularly useful for applicants who are facing tough evidentiary hurdles in qualifying under the stricter EB-1 Extraordinary Ability or Outstanding Professor or Researcher categories.
Links:
Department of Labor - Schedule A Occupations
Applications for labor certification for Schedule A occupations (20 CFR 656.15)
