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Schedule A Listed Occupations
Most - but not all - employment-based permanent residence categories require the U.S. Department of Labor (DOL) to certify the unavailability of U.S. workers for each job. For a few occupations, however, DOL has made a blanket determination that sufficient numbers of U.S. workers are unavailable, and that the hiring of non-U.S. workers will not negatively affect U.S. wages. These occupations are listed on DOL’s “Schedule A”, and employers hiring non-U.S. workers for these occupations may utilize a highly streamlined process that avoids PERM recruitment and application.
Schedule A has been used for a variety of purposes over many years (e.g., to authorize permanent employment of corporate transferees, now part of the EB-1 category) and is rarely amended to add or remove occupations. Until 2005, DOL also maintained a Schedule B, which listed occupations DOL had determined categorically could be staffed by U.S. workers, and which required employers to file a waiver of the exclusion. DOL rolled these Schedule B waivers into the PERM program.
Schedule A was most recently amended in 2005, and in its current iteration includes two groups of occupations:
Schedule A Group I Occupations
- Physical therapists who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy; and
- Professional nurses are licensed and meet certain educational qualifications.
Schedule A Group II Occupations
- Individuals of exceptional ability in the sciences and arts, including certain college and university teachers
- With "Science or art" defined as any field of knowledge for which colleges and universities offer courses toward a degree
Schedule A Specific Process Steps
Employers seeking to hire a non-U.S. worker into a position that falls within Schedule A may skip the PERM Labor Certification process entirely, and proceed directly the I-140 filing process with USCIS. Because the unavailability of U.S. workers has been categorically determined, USCIS’ focus is on determining whether the beneficiary employee meets the qualifications for the job. In the Schedule A Group II context, this becomes a question principally of who does and does not possess “exceptional ability.”
There are three elements employers must perform in connection with seeking approval to hire a non-U.S. worker under Schedule A. These include:
- Applying for a Prevailing Wage Determination from the Labor Department;
- Providing notice to employees of that the employer intends to file a petition seeking to hire a non-U.S. worker into a Schedule A qualifying position; and
- Filing the I-140 petition with USCIS.
Prevailing Wage Determination
The Prevailing Wage requirement for Schedule A is identical to the Prevailing Wage for individualized Labor Certifications under PERM. First, the employer provides DOL a description of the job duties, minimum experience, educational, and skill requirements for the position, the location of the job site, and other job specific details. It is often advisable for employers to also provide a commercially published wage survey which was developed using methodology acceptable to the Labor Department. These surveys are often far more realistic than the DOL’s annual wage surveys, which tend to skew much higher than real market conditions.
Notice
For the notice requirement, if the position is covered by a collective bargaining agreement, notice to the union representative is sufficient notice to all employees. If, as in most cases, there is no collective bargaining agreement, the employer must post a notice of the filing in a conspicuous place for ten consecutive business days, as well as place it on electronic in-house media at a location where employees would likely look for job postings. The posting period must be completed no more than 180 days or less than 30 days before filing of the Schedule A labor certification application. In all cases, the contents of the notice must include:
- A statement that the notice is being provided in connection with the labor certification application;
- A statement that any person may submit to DOL evidence bearing on the application; and
- The address of the DOL Certifying Officer with jurisdiction over the location of the proposed employment (this is a required element of the posting even though the request is not submitted to DOL).
Occupation Specific Evidence
Each occupation under Schedule A requires specific forms of evidence be submitted to show the occupation and the beneficiary are eligible for Schedule A designation.
For physical therapists, employers must submit:
- A letter or statement, signed by an authorized state physical therapy licensing official in the state of intended employment, stating the alien is qualified to take that state's written licensing examination for physical therapists.
For professional nurses, employers must submit documentation showing that:
- The alien has received a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); or
- The alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment; or
- The alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN).
For employers petitioning in the exceptional ability in the sciences or arts category the evidentiary requirements are governed by USCIS regulations applicable to the EB-2 Advanced Degree/Exceptional Ability preference category. The I-140 petition requires
- Documentary evidence showing the widespread acclaim and international recognition accorded the individual by recognized experts in the beneficiary’s field; and
- Documentation showing the individual’s work in that field during the past year did, and the individual's intended work in the United States will, require exceptional ability; and
- Documentation about the individual from at least two of the following seven groups:
- Receipt of internationally recognized prizes or awards for excellence their field;
- Evidence of membership in associations in individual’s field which require outstanding achievements of their members;
- Copies of publications from professional publications relating to the individual and their work;
- Evidence of the individual’s participation as a judge of the work of others in the same field;
- Evidence of the individual’s original contributions of major significance to their field;
- Evidence or authorship of published scientific or scholarly articles in international professional journals or professional journals with an international circulation; and
- Evidence of display of the individual’s work in artistic exhibitions and showcases in more than one country.
Although the types of evidence for Exceptional Ability bear some similarity to that required for EB-1 extraordinary ability, the overall standard is less stringent. A Schedule A exceptional ability determination requires “evidence showing the widespread acclaim and international recognition accorded the alien by recognized experts in the alien's field” whereas the higher standard of EB-1 extraordinary ability requires that the individual is “one of that small percentage who have risen to the very top of the field of endeavor.”
Here is how the overall standards compare across the three categories:
Schedule A exceptional ability in the sciences or arts | EB-2 exceptional ability | EB-1 extraordinary ability |
“widespread acclaim and international recognition accorded the alien by recognized experts in the alien's field” | “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business” | “one of that small percentage who have risen to the very top of the field of endeavor” |
The specific criteria that must be met also differs between Schedule A and EB-2, both in how many criteria must be met and in the criteria themselves. As discussed further below, where an employer is seeking Schedule A designation and qualification for EB-2 under the “exception ability” category, both standards must be met.
Schedule A | EB-2 |
Must provide evidence of 2 of the following 7 criteria | Must provide evidence of 3 of the following 6 criteria |
Receipt of internationally recognized prizes or awards for excellence their field | Evidence of recognition No form ID has been set. for achievements and significant contributions to the field by peers, governmental entities, or professional or business organizations |
Evidence of membership in associations in individual’s field which require outstanding achievements of their members | Evidence of membership in professional associations [no achievement benchmark required] |
Copies of publications from professional publications relating to the individual and their work | An official academic record showing that the individual has a university degree relating to the area of exceptional ability; |
Evidence of the individual’s participation as a judge of the work of others in the same field | Letters from employers showing that the individual has at least ten years of full-time experience in the occupation for which he or she is being sought |
Evidence of the individual’s original contributions of major significance to their field | A license to practice or certification for the profession or occupation |
Evidence or authorship of published scientific or scholarly articles in international professional journals or professional journals with an international circulation | Evidence that the individual has commanded high compensation |
Evidence of display of the individual’s work in artistic exhibitions and showcases in more than one country. |
For individuals who have exceptional ability in the performing arts, employers must submit:
- Documentary evidence that the performer’s work experience during the past twelve months did require exceptional ability;
- Documentary evidence that the performer’s work in the United States will require exceptional ability; and
- Documentation of this exceptional ability such as (no specific number required):
- Documentation attesting to the current widespread acclaim and international recognition accorded to the performer, and receipt of internationally recognized prizes or awards for excellence;
- Published material by or about the performer, such as critical reviews or articles in major newspapers, periodicals, and/or trade journals;
- Evidence of earnings commensurate with the claimed level of ability;
- Playbills and star billings;
- Documents attesting to the outstanding reputation of theaters, concert halls, night clubs, and other establishments in which the performer has appeared or is scheduled to appear; and/or
- Documents attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the performer has performed during the past year in a leading or starring capacity.
These criteria also bear some similarity to the O-1 nonimmigrant visa category’s requirements for extraordinary ability in the arts. For example, for both O-1 artists and Schedule A performing artists, the criteria includes (1) evidence the performer has performed or will perform with organization which have distinguished or outstanding reputations, (2) evidence the performer has received international recognition for their work, and (3) evidence the performer has received high compensation compared to others in their field. However, Schedule A and O-1 differ in that, for O-1, the individual must meet at least 3 of the listed criteria and cannot substitute alternative criteria (except for in motion pictures or television). For schedule A, there is no minimum number of criteria which must be met, and alternative evidence can be provided as the criteria are suggestions for how an employer can show the beneficiary has exceptional ability.
At the same time, the threshold eligibility for the EB-2 category requires that the beneficiary, regardless of field, establish that they possess an advanced degree, or that they meet at least three of the criteria for exceptional ability individuals as part of the I-140 process. While an individual can meet the Schedule A definition of an individual with exceptional ability in the performing arts without meeting specific criteria (as discussed above in comparison to the O-1 requirements), the I-140 lists seven specific criteria of which the beneficiary must meet at least three and also requires showing that the beneficiary has a “a degree of expertise significantly above that ordinarily encountered” (whereas the Schedule A criteria is met by showing the beneficiary has “exceptional ability").
Petition for Schedule A Designation
DOL has delegated the determination of whether an individual beneficiary qualifies for one of the Schedule A occupations to USCIS, which USCIS does while also adjudicating the employer’s I-140 immigrant petition.
Although the evaluation of qualification for Schedule A designation and qualification for EB-2 or EB-3 classification are conducted by the same agency as part of a single application, they are analyzed separately. For example, an individual who meets the Department of Labor’s definition of having exceptional ability for the purpose of Schedule A designation does not automatically also meet the definition of exceptional ability for the purpose of EB-2 classification. Similarly, an employer seeking Schedule A designation and EB-2 classification for a physical therapist will have to show that, in addition to meeting the Schedule A requirements, the beneficiary must also either hold an advanced degree or meets the EB-2 exceptional ability criteria.
Permanent Residence Process
As with the EB-2 and EB-3 visa categories generally, the beneficiary has a choice of how to proceed with green card processing. If in the U.S. and eligible for adjustment of status, the beneficiary may file an I-485 application to adjust status at the same as the I-140 petition, while the petition is pending, or after it has been approved. If adjustment is inadvisable or the beneficiary is outside the U.S., a consular visa interview will be required after the I-140 petition is approved.