I. What is Schedule A?

Schedule A is a listing by the Department of Labor of occupations deemed in short supply so that individual labor certifications are not required. Schedule A cases, though subject to Labor Certification requirements, are filed directly with Citizenship and Immigration Services.

The statutory underpinnings, and those relevant to this article, are as follows:

A. Section 212(a)(5)(A) of the Immigration and Nationality Act requires a Labor Certification for persons seeking admission for purposes of performing skilled or unskilled labor. This section further designates, "Certain aliens subject to special rule," including in this clause, "…an alien who - is a member of the teaching professions, or has exceptional ability in the sciences or arts." These "special rule" persons do not require individual labor certifications. B. 20 CFR Part 656 details the Labor Certification Process for Permanent Employment of Aliens in the United States. Schedule A is defined at Section 656.5 and includes two groups which do not require individual labor certifications due to the Labor Departments determination, "…there are not sufficient United States workers who are able, willing, qualified and available for the occupations listed…" in Schedule A. Group I includes physical therapists and professional nurses. Group II, the subject of this article, includes aliens with exceptional ability in the sciences, arts, and performing arts.1 C. 20 CFR 656.15 outlines the filing and documentation requirements. D. 20 CFR 656.40 requires payment of the prevailing wage. E. 20 CFR 656.10(d) requires posting of a notice of job opportunity and publication in any and all in-house media. F. 20 CFR 656.15(a), 656.15(e) and 8 CFR 204.5(k)(4) provide that Labor Certifications under Schedule A are not to be filed with the Employment and Training Administration of the DOL but are to be filed at the appropriate DHS office.2 G. 20 CFR 656.15(e) provides that an Immigration Officer makes the determination of Schedule A eligibility and the DHS decision is final. H. 8 CFR 245.2(a)(2) allows concurrent filing of the I-140 Petition and Application for Permanent Residency if a visa is immediately available.

II. What is "exceptional ability"?

Section 656.15 of 20 Code of Federal Regulations sets out the criteria for establishing "exceptional ability."

A. Widespread acclaim and international recognition; B. Work during the year preceding the application required exceptional ability; C. The job offered requires exceptional ability; D. Applicants must submit documentation of at least two of the following seven qualifications: 1. Receipt of internationally recognized prizes or awards for excellence in their field; 2. Membership in international associations in their field that require outstanding achievements of their members; 3. Published material in professional publications about the alien; 4. Participation on a panel, or individually, as a judge of the work of others in the same or an allied field; 5. Original scientific or scholarly research contributions of major significance in their field; 6. Authorship of published scientific or scholarly articles in professional journals with international circulation; and 7. Display of their work in their field at artistic exhibitions in more than one country.

III. Who is exceptional?

A. Group II has two sub-categories: exceptional ability in the sciences or arts, and exceptional ability in the performing arts. B. Sciences or Arts is broadly defined: 1. Teachers of exceptional ability in colleges of universities. 2. "…[A]ny field of knowledge…with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge or skill."3    a. A degree is not required: "An alien, however, need not have studied at a college or university in order to qualify for the Group II occupation."4

IV. Exceptional Ability is Extraordinary but not Exceptional

A. Schedule A Group II "exceptional ability" is not the same as Employment Second Preference (E B2) "exceptional ability." 1. The use of identical words is very confusing. The employment preference system of the INA, set forth in chapter 203(b), grants second preference classification to persons with advanced degrees or those who demonstrate exceptional ability in the sciences, arts or business. These persons will have had approved individual labor certifications as the basis for seeking 2nd preference eligibility. This "exceptional ability" is not as rigorous or restrictive as Schedule A, Group II exceptional ability. B. Schedule A Group II "exceptional ability" is comparable to Employment First Preference(EB1) "extraordinary ability." 1. The INS commentary on implementing the regulations for IMMACT 90 addressed the "undesirable confusion" created by Congress' use of the same terms. The INS commentary, published at 56 Federal Register 60897 on Nov. 11, 1991 establishes that, "the rule's standards governing "extraordinary ability" are comparable to the Schedule A/Group II standards governing "exceptional ability" and the rule's standards governing "exceptional ability" are less restrictive than the Schedule A/Group II standards governing "exceptional ability."5 2. The Yates Memo of September 23, 2005, included as Exhibit A reiterates that a claim of Schedule A exceptional ability is comparable to the Legacy INS definition of extraordinary.

V. Why is Schedule A relevant: The Utility of Schedule A Group II

A. As established above the exceptional alien standard in Schedule A cases is as high as the extraordinary ability standard for EB1 cases. Moreover, because they are Labor Certifications, Schedule A applications must include prevailing wage determinations and the positing of the notice of job opportunity. B. Why then would anyone file a Schedule A case? The primary reason for the current use of this procedure is as follows: 1. The Real ID Act of 2005 is a horrendous and mean spirited piece of legislation. Mixed in with its list of crippling immigration provisions is Section 502 which restores up to 50,000 employment based immigrant visa numbers unused from 2001 to 2004, making them available only to immigrants qualifying on the basis of a Schedule A determination. The intent of Section 502 was to open up visas to professional nurses who are badly needed throughout the United States. Thus, 50,000 visas for Schedule A immigrants became available in May 2005. 2. In June 2005, the U.S. Department of State announced that the July 2005 Visa bulletin would show retrogression in the 3rd preference employment category and in both the first and second preference categories for India and China. (The Visa Bulletin for April 2006 is included as Exhibit B). Virtually overnight, the most highly qualified professors, scholars, researchers, executives from both India and China, that is, those in the first employment preference, those who are supposed to be first in line for immigrant status based upon employment, found that their wait for permanent residency would be drastically longer than those from other parts of the world who were in the second preference. These aliens of extraordinary ability and outstanding professors and multinational executives are now backed up almost as much as third preference aliens who qualify with bachelors degrees or two years experience. 3. As a result of the retrogression, the Real ID Act's Section 502 offered a new option for permanent residency for the very highly skilled, especially those from China and India. Until the 50,000 visa numbers are exhausted the Schedule A will be current on the visa bulletin. Thus, a qualified applicant from India, for instance, cannot only seek Schedule A approval but can concurrently file for permanent residency. C. Other grounds for using Schedule A, Group II 1. Prior to the above described confluence of Real ID and EB retrogression, Schedule A, Group II was more of a relic of employment based processes in place before IMMACT 90. Nevertheless, it can be distinguished from aliens of extraordinary ability (EB1) in that the exceptional ability alien need not be one of that small percentage who have risen to the very top of the field and have sustained national or international acclaim. The general requirement for Group II exceptional ability specifies only widespread acclaim and international recognition.

VI. Filing the Schedule A Application

A. Filed at the Nebraska Service Center B. Form G-28; C. Form I-140 of the employer with filing fee; D. An uncertified Form ETA-9089 in duplicate signed by the employer, the beneficiary, and the attorney; 1. The form must be completed; 2. The job definition and minimum requirements must show it to be one requiring persons with exceptional ability (Parts H.11 and H.14); 3. Sections of the form pertaining to recruitment are not filled in since there is no recruitment. E. A Prevailing Wage Determination; F. The Notice of Job Opportunity posted at the place of employment for 10 consecutive business days. This must be posted at least 30 days before filing the petition and no more than 180 days before filing; G. Posting with in-house media; H. Evidence of the person's qualifications.

VII. The filing procedures set out above are detailed by CIS in the recently published "Guidance for Schedule A Blanket Labor Certifications effective February 14, 2006." Please see Exhibit B.

VIII. Exhibit C and Exhibit D are sample submissions of Schedule A/Group II cases.

¹ See 20 CFR 656.5(a) and (b)

²Effective April 1, 2006 the appropriate DHS office is the Nebraska Service Center which will handle all I-140 Petitions.

³20 CFR 656.5(b)(1)

⁴supra

⁵INS Commentary on implementing regulations, 56 Federal Reg. 60897, 11/29/91:

Four commenters questioned how the standards in the proposed rule for a showing "extraordinary ability" under the first employment-based classification related to those required for a showing of "exceptional ability" under the Department of Labor's Schedule A/Group II. Schedule A/Group II, found at 20 CFR 656.10, exempts certain aliens of "exceptional ability" from the need to obtain an individual labor certification. IMMACT created a new immigrant visa preference classification for aliens of "extraordinary ability" (as well as a new nonimmigrant visa classification for such aliens). It also carried over a separate immigrant visa preference classification for aliens of "exceptional ability." It is the Service's duty, then, to discern the standards that Congress meant to apply to these two classifications. The legislative history indicates at House Report 101-723, p. 59, that Congress intended for IMMACT's "extraordinary ability" classification to be comparable to the Department of Labor's "exceptional ability" standard set out in Schedule A/Group II. Unfortunately, IMMACT also uses the term "exceptional ability" when referring to certain immigrants under the new second employment-based classification; yet IMMACT indicates that its "exceptional ability" classification is a less restrictive one than its "extraordinary ability" classification. Therefore, IMMACT's "exceptional ability" classification is necessarily also less restrictive than the Department of Labor's Schedule A/Group II "exceptional ability" standard.

Despite the undesirable confusion, however, the Service must use the terms selected by Congress. Accordingly, the rule's standards governing "extraordinary ability" are comparable to the Schedule A/Group II standards governing "exceptional ability" and the rule's standards governing "exceptional ability" are less restrictive than the Schedule A/Group II standards governing "exceptional ability." An alien meeting the criteria for "extraordinary" under 8 CFR 204.5(h) need not obtain a labor certification. An alien who fails to meet these criteria may qualify as "exceptional" by meeting the criteria of 8 CFR 204.5(k) however, such a petition must be accompanied by a labor certification. An alien who would also meet the criteria for "exceptional" under Schedule A/Group II -- though that alien might also qualify under the rule as "extraordinary" -- has the additional option, if visa availability or other circumstances make it desirable, to seek classification as an "exceptional" alien under section 203(b)(2), thereby avoiding the necessity of the employer obtaining an individual labor certification.

HOME | OUR FIRM | PRACTICE AREAS | ARTICLES & ARCHIVES
CONTACT US

Information on this web site, while accurate to our best knowledge, does not itself constitute legal advice.

Copyright © 2006 - Pampanin Law Offices
All Rights Reserved

Web Design by In Step Development

Last update