Some aliens, now faced with the inability to concurrently file I-485s and to gain the benefits associated with that filing, may have the option of filing a Petition under a subcategory of the EB-2 category known as Schedule A, Group II.
This strategy became possible in May 2005, with the passage of the REAL ID Act1. In that legislation, Congress added a set-aside of 50,000 additional visas in the EB-2 category for petitions filed under “Schedule A.” Because of this additional allocation, while other employment-based categories have retrogressed, visas remain available for beneficiaries of Schedule A petitions and should continue to appear as “Current” for the foreseeable future.
Schedule A, Group II is not new. It was included in the Department of Labor (DOL) regulations that pre-dated PERM, and it has survived as part of the new regulations implemented in March 2005. Schedule A refers to a section of the DOL regulations, found at 20 CFR 656.22, which lists those occupations which the Secretary of Labor has pre-certified as shortage occupations. Schedule A, Group I includes nurses and physical therapists. Schedule A, Group II refers to “Aliens (except for aliens in the performing arts) of exceptional ability in the sciences or arts including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States.” Pursuant to this regulation, it is presumed that aliens of exceptional ability in the sciences or arts, who meet the necessary criteria, are not taking a job from an able, willing, qualified, and available U.S. worker and will not otherwise negatively impact the wages and working conditions of similarly employed U.S. workers.
It should be noted that Schedule A, Group II is found as part of the DOL regulations and is linked to INA Section 212(a)(5), which requires the Secretary of Labor to certify that the hiring of certain workers will not adversely affect U.S. workers. Accordingly, an Application for Labor Certification is still required. However, for both Group I and Group II of Schedule A, the Application is not filed with DOL. Rather, it is filed directly with CIS along with the Immigrant Petition. No recruitment is required by the U.S. employer and the Application does not require any accompanying proof or documentation of unavailability of U.S. workers for the position.
Because Schedule A cases require an Application for Labor Certification — even though it is pre-certified – petitions in this category are employer sponsored; that is, a job offer is required. Most importantly, along with the employer-sponsored I-140 and the Application for Permanent Labor Certification on Form ETA-9089, the employer must submit documentation of exceptional ability. The type of documentation required varies depending upon whether the exceptional ability is in the performing arts, or whether it is in the sciences or other arts field.
If in the sciences or arts (other than performing arts), the documentation must evidence “widespread acclaim and international recognition afforded the alien by recognized experts in the alien’s field”. In addition, documentation should be submitted to show that the alien’s work in the past year, and the intended work in the future, require exceptional ability. In most cases, reference letters from recognized experts are critical to meeting this documentary burden of proof.
In addition, at least two other forms of documentation from a list of seven possible groups must be presented. These seven groups are as follows:
– Documentation of the alien’s receipt of internationally recognized prizes or awards for excellence in the field for which certification is sought.
– Documentation of the alien’s membership in international associations in the field for which certification is sought, which requires outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields.
– Published material in professional publications about the alien, relating to the alien’s work in the field for which certification is sought, which shall include the title, date, and author of such published material.
– Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which certification is sought.
– Evidence of the alien’s original scientific or scholarly research contributions of major significance in the field for which certification is sought
– Evidence of the alien’s authorship of published scientific or scholarly articles in the field for which certification is sought, in international professional journals or professional journals with an international circulation.
– Evidence of the display of the alien’s work, in the field for which certification is sought, at artistic exhibitions in more than one country.
See, 20 C.F.R. Sec. 656.22(d).
The requirements for exceptional ability in the performing arts are similar but not identical. As with other aliens, the employer must show that the alien’s work experience during the past twelve months required, and the intended work in the United States will require, exceptional ability. There is no requirement to produce documentation showing the alien’s “widespread acclaim and international recognition”, although such documentation may be submitted to show exceptional ability. The regulations do not specify a minimum number of categories of documentation that must be presented. Rather, the regulations specify examples of documentation that may be submitted:
– Documentation attesting to the current widespread acclaim and international recognition accorded to the alien, and receipt of internationally recognized prizes or awards for excellence;
– Published material by or about the alien, such as critical reviews or articles in major newspapers, periodicals, and /or trade journals;
– Documentary 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 alien has appeared or is scheduled to appear; and/or
– Documentation attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the alien has performed during the past year in a leading or starring capacity.
See, 20 C.F.R. Sec. 656.22 [cite]?
The following are important points to keep in mind when analyzing Schedule A, Group II cases and interpreting the relevant regulations:
First, it is important to emphasize that the documentary requirements for Schedule A, Group II cases are very similar to the CIS regulatory requirements for aliens of extraordinary ability (EB-1(1)) and outstanding researchers or professors (EB-1(2)). A recent CIS guidance memorandum from William R. Yates, Associate Director Operations, dated September 23, 2005, states: “Congress intended for the ‘extraordinary ability’ classification to be comparable to DOL’s ‘exceptional ability’ standard in Schedule A, Group II.”
That same memorandum somewhat clouds the issue by stating that ‘exceptional ability’ as used in the Immigration and Nationality Act is a less restrictive standard. Although this language does nothing to reconcile the confusion, it appears that CIS is stating that the adjudicatory standard for Schedule A Group II cases will be similar to the adjudicatory standard for EB-1 extraordinary ability immigrant petitions, which is a higher standard than will be used in EB-2 “exceptional ability” petitions.
Other observations may be made about Schedule A, Group II which aid in the understanding and use of this alternate visa preference category.
For example, unlike extraordinary ability (EB-1(1)) petitions, which can be filed for aliens in any field of endeavor, Schedule A, Group II petitions can only be filed for aliens with exceptional ability in the sciences, arts or performing arts. As with EB-1 petitions, Schedule A, Group II petitions require not only that the alien have exhibited the exceptional ability in the past, but also that the alien’s future work in the United States will require such ability. Also, Schedule A, Group II expressly requires that the alien’s work in the past year have required the exceptional ability. EB-1 petitions do not have a similar requirement and presumably could be approved based upon an alien’s accomplishments even if none of the accomplishments occurred in the past year.
Another distinction is that, while extraordinary ability petitions require documentation in three different categories, petitions in Schedule A, Group II require documentation in only two of the cited categories. Moreover, while the documentary categories for Schedule A, Group II have an international focus, no such focus is presented for EB-1 petitions. For example, for Schedule A, Group II, the prizes and awards must be “internationally recognized”, the association memberships must be in “international associations” and the publications must be in “international professional journals or professional journals with an international circulation.” Aliens in the performing arts under Schedule A, Group II, as contrasted with aliens in other arts fields, do not require international recognition.
Under the revised regulations which became effective March 28, 2005, petitions filed under Schedule A, Group II will require, in addition to the documentary evidence of exceptional ability, the employer-signed I-140 and the ETA-9089, the following labor-related documents:
– A prevailing wage determination issued by the State Workforce Agency;
– A notice to either the bargaining representative of the employer’s employees or to the employees directly through an internal notice posted in a conspicuous place at the worksite for at least ten consecutive business days; and
– Notice in any electronic or printed in-house media that the employer normally utilizes for the recruitment of similar positions, if any.
Attention should also be paid to the following labor-related requirements associated with Schedule A, Group II filings:
As with other Applications for Labor Certification, the I-140 and the accompanying Form 9089, etc. cannot be filed less than thirty days before the last day of the required posting period. Also, even though the Application will not be filed with the DOL, the posting notice should refer workers with questions about the Petition to the DOL office with jurisdiction over the worksite, rather than to the CIS office where the petition will be filed.
Also, when drafting the job duties and job requirements for the Form 9089, the prevailing wage request and the internal posting notice, the employer or the employer’s representative should keep in mind that the job duties must reflect the need for an alien of exceptional ability; and the job requirements should reflect the requirement for exceptional ability. Some practitioners may actually want to include a specific requirement of “exceptional ability” in the employer’s job description and postings. It is noteworthy that the job requirements will not be tested either for the availability of U.S. workers or for the “normalcy” or “business necessity” of the requirements or whether they meet DOL’s SVP requirements. However, the higher level requirement will obviously translate into higher prevailing wage levels.
With the implementation of the REAL ID provisions of the Emergency Supplement Appropriations Act in May 2005, Congress did real damage to American immigration laws. At the same time, the very last section of the Act, which probably went unnoticed by all but a few legislators who voted on it, was this provision which created the set-aside of immigrant visas for Schedule A. Though primarily intended to benefit health care institutions and nurses, the provision goes further than that and covers all Schedule A workers, including Group II, the exceptional ability aliens.
This provision anticipated the emergency created by retrogression in the EB-3 category and in the Chinese and Indian EB-1 and EB-2 categories and creates opportunities for creative advocates working with potentially eligible for aliens and their employers to file petitions in the EB-2 category, under Schedule A Group II, with accompanying concurrent Applications for Adjustment of Status – at least until the quota for this category is depleted.
