The EB-2 visa is a category of employment-based immigrant visa in the United States. It is designed for foreign nationals who possess advanced degrees or exceptional abilities in their field of expertise and wish to become lawful permanent residents (green card holders) in the U.S.
Labor certification, often referred to as “PERM Labor Certification,” is a process required for the EB-2 employment-based immigrant visa category in the United States.
It is a crucial step in the employment-based green card application process.
The purpose of labor certification is to ensure that the hiring of a foreign worker will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.
There are two primary exceptions to the labor certification requirement:
- National Interest Waiver (NIW): The National Interest Waiver is an exception to the labor certification requirement for certain individuals who fall under the EB-2 visa category, which is for individuals with advanced degrees or exceptional abilities.
- Schedule A Occupations: Certain occupations are designated as “Schedule A” by the U.S. Department of Labor (DOL). These occupations are considered in short supply in the United States, and as a result, labor certification is not required for foreign workers in these positions.
In this guide, we will discuss in detail the Schedule A occupations.
What is “Schedule A”?
As a general rule, all EB-2 petitions must be accompanied by an approved individual labor certification.
Exceptions to the labor certification requirement are available for positions under U.S. Department of Labor’s (DOL) Schedule A, Group I and Group II occupations.
For certain occupations, DOL has predetermined that there are not sufficient U.S. workers who are able, willing, qualified, and available.
These occupations are referred to as Schedule A occupations, and the process to satisfy the permanent labor certification requirement is waived.
DOL has predetermined (“pre-certified”) that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of foreign nationals in those occupations.
Schedule A includes the following professions:
- Group I – physical therapists and professional nurses; and
- Group II – immigrants of exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts.
This means that a U.S. employer who wants to hire a foreign worker for a Schedule A occupation is not required to complete the labor certification.
Schedule A – Group I – physical therapists and professional nurses
Schedule A – Group I is used for certain healthcare professionals, including physical therapists and professional nurses, to make it easier for them to obtain permanent residency in the U.S. through employment.
Under Schedule A – Group I, physical therapists and professional nurses are considered Schedule A workers. This means they are not required to complete the Labor Certification to obtain employment-based green cards, such as the EB-2 or EB-3 category.
Key points to note about Schedule A – Group I for physical therapists and professional nurses:
- Labor Certification: Most employment-based visas require employers to obtain a labor certification from the U.S. Department of Labor (DOL) to demonstrate that there are no qualified U.S. workers available for the job. However, under Schedule A – Group I, the labor certification requirement is waived for physical therapists and professional nurses.
- USCIS Filing: Employers can directly file immigrant visa petitions (Form I-140) with the United States Citizenship and Immigration Services (USCIS) for physical therapists and professional nurses under Schedule A – Group I.
- Visa Priority Date: Applicants will still need to wait for their visa numbers to become available based on the Visa Bulletin published by the U.S. Department of State. The priority date is the date when the immigrant petition (Form I-140) was filed.
- Employment Offer: To qualify, physical therapists and professional nurses must have a job offer from a U.S. employer who is willing to sponsor their immigration.
- Educational and Licensing Requirements: Applicants must meet the educational and licensing requirements for their profession in the state where they intend to work.
Schedule A – Group II – immigrants of exceptional ability in the sciences or arts
Foreign nationals with exceptional abilities may qualify for immigrant visas in the sciences or arts (including performing arts) under the Schedule A – Group II.
Schedule A, Group II is an employer-sponsored classification and is unavailable to self-petitioners. It means that unlike EB-2 National Interest Waiver (NIW) an applicant must have a U.S. employer to sponsor them for permanent residency.
The term “exceptional ability” is defined as “recognized outstanding performance well above the standard for professional competence in the occupation.”
A “science” or an “art” is defined as a field in which “colleges and universities commonly offer specialized courses leading to a degree.”
The following fields potentially qualify for Schedule A, Group II occupations:
- Certain college and university teachers
- Performing arts
- Other fields of knowledge which are commonly offered for study in college and university courses leading to a degree
How to qualify for Schedule A – Group II
A foreign national can qualify for an immigrant visa under Schedule A – Group II if he or she meets ALL of the following criteria:
- Widespread acclaim and international recognition accorded by recognized experts;
- Documentation confirming that the foreign national’s work during the past year did, and the foreign national’s intended work will, require exceptional ability; and
- Confirmation that the alien meets at least two of the seven regulatory criteria.
1. Widespread Acclaim and International Recognition Accorded by Recognized Experts
To meet this requirement, the applicants must submit the following evidence:
- Reference letters from recognized experts that discuss the applicant’s claim of widespread acclaim and international recognition, Ideally, reference letters will come from a diverse group of recognized experts from different countries and/or address the applicant’s record of accomplishments in more than one country. CVs of each expert must be submitted as evidence of their credentials and recognition in the field.
2. Confirmation that the Alien’s Work During the Past Year Did, and Intended Work Will, Require Exceptional Ability
The Schedule A – Group II application must contain the following evidence:
- The applicant has at least one year of experience (example of acceptable document: a letter from an employer confirming at least one year of experience);
- The applicant’s work during the past year required exceptional ability (example of acceptable documents: reference letters from recognized experts, publications about applicant’s work or any other documents showing the exceptional nature of the applicant’s work)
- Applicant’s future work will continue to require exceptional ability (the beneficiary’s accomplishments be “in the field in which certification is sought).
3. Confirmation that the Foreign National Meets at Least Two Regulatory Criteria
Applicant must submit documentation in at least two of the following seven groups:
Examples of acceptable documents
|Receipt of internationally recognized prizes or awards for excellence in the field for which certification is sought||
|Membership in international associations, in the field for which certification is sought, which require outstanding achievements of their members, as judged by recognized international experts||
|Published material in professional publications about the foreign national, about the foreign national’s work in the field||
|Evidence of participation on a panel, or individually, as a judge of the work of others in the same or in an allied field||
|Evidence of original scientific or scholarly research contributions of major significance in the field||
|Evidence of authorship of published scientific or scholarly articles in the field in international professional journals or professional journals with international circulation||
|Evidence of the display of the foreign national’s work, in the field, at artistic exhibitions in more than one country||
How to qualify for Schedule A – Group II in performing arts
To qualify for Schedule A, Group II in the field of performing arts, an applicant must submit the evidence showing the following:
- The applicant’s work during the past year did, and the applicant’s intended work will require exceptional ability.
- The applicant has exceptional ability by meeting one or more of the following criteria:
- Documentation of current widespread acclaim and international recognition, and receipt of internationally recognized prizes and awards for excellence;
- Published material by or about the applicant, such as critical reviews or articles in major newspapers, periodicals, or trade journals;
- Evidence of earnings commensurate with the claimed level of ability;
- Playbills and star billings;
- Confirmation of the outstanding reputation of theaters, concert halls, night clubs, and other establishments where the applicant has appeared or is scheduled to appear;
- Confirmation of the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations where the applicant has performed during the past year in a leading or starring capacity.
How to apply for permanent residence under Schedule A – Group II
In EB-2 Schedule A – Group II petitions, the U.S. employer sponsoring a foreign national employee for permanent residence is called a “Petitioner”. Foreign national being sponsored is called a “Beneficiary”. In this guide we refer to the beneficiary as “Applicant”.
To apply for permanent residence under Schedule A – Group II the following steps must be taken:
Step 1. Determine if the applicant’s occupation meets the ““science or art” definition.
Step 2. Determine if the applicant meets the three-prong test (discussed above):
- Widespread acclaim and international recognition accorded by recognized experts;
- Documentation confirming that the applicant’s work during the past year did, and the applicant’s intended work will, require exceptional ability confirmation that the applicant meets at least two of the seven regulatory criteria.
Step 3. Employer obtains Prevailing Wage Determination from the U.S. Department of Labor. The applicant’s wage must be at least 100% of the prevailing wage.
Step 4. Employer posts a notice of filing the Application for Permanent Employment Certification. This notice must be given to the bargaining unit representative (if applicable), or be published in a visible location at the place of the applicant’s employment for at least 10 consecutive business days. This notice must be published between 30 and 180 days prior to filing of Form I-140 petition. Proof of complying with the posting requirement must be submitted with the rest of Form I-140 application with USCIS.
Step 5. Determine if the applicant meets the EB-2 or EB-3 category requirements. Applying under EB-3 might be beneficial for several reasons: first, EB-3 has lower educational requirements. Second, for some applicants (depending on their country of birth or their spouse’s country of birth) the EB-3 has a shorter waiting period vs EB-2.
Step 6. Employer files signed uncertified ETA Form 9089 (2 hard copies) and Form I-140 with USCIS.