There are certain occupations that the Department of Labor (DOL) has pre-certified, which means that the DOL accepts that there are not a sufficient number of qualified and available U.S. workers.
The following Schedule A occupations have been predetermined by the DOL:
- Group I-Physical Therapists and Nurses; and
- Immigrants of exceptional Ability in the sciences or arts, including college and University Teachers, and immigrants of exceptional ability in the performing arts.
This article will mostly focus on Group I occupations.
Due to the shortage of U.S. workers, Employers are not required to go through the DOL Labor certification process prior to filing an Immigrant petition and may submit an uncertified ETA 9089 form directly to USCIS with the I-140 filing. By doing this the Employer is essentially asking USCIS to certify the ETA 9089 form.
This means that Employers do not need to conduct a recruitment campaign nor endure the long wait times of the DOL Labor certification process and the possibility of an audit.
However, the Employer is still required to submit a prevailing wage request, which typically takes 5-6 months, and they must still post a notice internally for 10 consecutive business days to notify their employees. This notice must include a detailed job description and include details of the wage being offered to the foreign worker (which must meet or exceed the prevailing wage). The Employer must also post the position on all in-house media, which it usually uses to post similar positions.
Once the employer receives the prevailing wage determination and has posted the internal notice, they can file an I-140 directly with USCIS.
Eligibility for Physical therapists and Nurses
The employer must demonstrate that it has a bona-fide job opportunity available for the beneficiary and the beneficiary must show that they are qualified for the position being offered.
For registered nurses this means demonstrating one of the following:
- That they have a full, unrestricted permanent license to practice nursing in the state of intended of employment; or
- A certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); or
- That they have passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) as of the date of filing.
For physical therapists applicants will need to demonstrate the following:
- That they have a permanent license to practice in the state of intended employment.; or
- Letter or statement signed by an authorized state physical therapy licensing official in the state of intended employment. This letter must indicate that they are qualified to take the written licensing examination for physical therapists.
Schedule A cases may be submitted in either the EB-2 category or EB-3. An EB-2 filing means showing that the position requires either a Master’s degree or a Bachelor’s degree and 5 years of experience. Under EB-3 the filing can either be filed as a professional, which means showing at least a bachelor’s degree, or a skilled worker filing, which means showing that the position requires at least 2 years of experience.
Whilst an Employer can skip the DOL labor certification process (also known as the PERM) and proceed straight to filing the I-140, the ability of the applicant to file the I-485 application to adjust status will depend on where the applicant is born and the availability of a visa. This is determined by looking at the Department of State’s visa bulletin.
For applicants who previously had an approved EB-2 filing, USCIS appears to have accepted that Schedule A applicants can downgrade to EB-3. For further details please see our previous article:
If you have questions regarding the above or any other immigration-related matter, please do not hesitate to contact PLG Partner Chris Prescott at cprescott@patellegal.com.