USCIS Clarifies Schedule A Exceptional ability in Sciences and Art

 

Many foreign workers have heard about the EB-1A “extraordinary ability alien petition” and the EB-2 “national interest waiver” petition. These are two types of employment-based green card applications that an applicant may file by themselves, without sponsorship by a U.S. employer. Additionally, applicants can submit these two types of petitions directly with the USCIS without first obtaining a labor certification from the Department of Labor.

The purpose of the labor certification is to test the American job market to see if there are able, willing, qualified and available American workers for the position. If such workers exist, the employer must first offer the position to them. Under the employment-based categories, there is a sub-category of positions under Schedule A that is also exempt from the labor certification requirement.

Schedule A Group I pre-certifies job openings for physical therapists and nurses, while Group II pre-certifies positions that require exceptional ability in "sciences and art". Foreign workers may submit their immigrant visa petitions with USCIS directly without first obtaining a labor certification. However, they must have a full-time offer of employment by a U.S. employer, and also demonstrate exceptional ability in sciences and art.

USCIS recently clarifies that “science or art” means any field of knowledge or skill which colleges and universities commonly offer specialized courses leading to a degree in the knowledge or skill. This definition is adapted from existing DOL regulations. With this definition, most professional and skilled occupations would qualify.

To apply under the Schedule A Group II sub-category, the employer must provide notice of the opening to bargaining representatives, or to its employees. To prove exceptional ability, there must be evidence that the employee's achievements have enjoyed “widespread acclaim” and “international recognition”. The employee must provide evidence to satisfy at least 2 of these 7 criteria:

1. Receipt of internationally recognized awards;
2. Membership in international associations that require outstanding achievement;
3. Published material in professional publications about the employee or his work;
4. Participation as a judge, reviewer, or juror of the work of others;
5. Original scientific or scholarly research contributions of major significance in the field;
6. Authorship of published scientific or scholarly articles in international or professional journals; and
7. Display of the beneficiary’s work, in the field, at artistic exhibitions in more than one country.

Further, there must be evidence that the beneficiary’s employment during the past year, and also the position offered in the U.S., must also require exceptional ability.

For workers with exceptional or unusual ability that do not meet the requirements of EB-1A and NIW petitions, Schedule A Group II offers an alternative avenue for them to apply for U.S. green cards without going through the lengthy labor certification process.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)