Avoiding Labor Certification: Schedule A II Occupations – Exceptional Ability

Obtaining an immigrant visa for a foreign national in the employer-sponsored second-preference (EB-2) or third-preference (EB-3) categories generally is a two-step process requiring both Department of Labor (DOL) and USCIS approval. The first step is obtaining an approved labor certification from DOL. The second step is obtaining an approved immigrant petition from USCIS.

(More information on this process as it relates to specific types of employment can be found in our other articles under the category of Work Visas – Immigrant. )

There are certain jobs, however, that enjoy a streamlined processing of the first step, labor certification, because DOL has already pre-determined that insufficient American workers exist to fill them. These jobs are known as Schedule A occupations and can be found at 20 CFR 656.5. This article focuses on Group II of Schedule A, those with “exceptional ability.”

Specifically, the streamlined process avoids the time-consuming recruitment formalities of PERM for those foreign nationals who can demonstrate an “exceptional ability” in either: 1) Sciences or Arts or 2) Performing Arts. For both categories, the key issue is international recognition. A person who has received national, but not international recognition, does not meet the “exceptional ability” standard.

Sciences or Arts

This group includes foreign nationals who have an exceptional ability in the sciences or arts, including college and university teachers, 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.

For purposes of this group, 20 CFR 656.5(b)(1) defines the term “science or art” as any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill.

A foreign national need not have studied at a college or university in order to qualify for the Group II occupation. Instead, sufficient experience can be used to establish the applicant meets the “exceptional ability” criteria.

How to Prove “Exceptional Ability” for the Sciences and Arts?

To prove a foreign national has the requisite “exceptional ability,” the employer must file documentary evidence showing 1) the widespread acclaim and international recognition accorded the foreign national by recognized experts in the foreign national’s field; 2) documentation showing the foreign national’s work in that field during the past year did, and the foreign national’s intended work in the United States will, require exceptional ability; and 3) documentation about the foreign national from at least two of seven identified categories involving receipt of prizes, published or authored articles and other prestigious honors.

1. The widespread acclaim and international recognition accorded the foreign national by recognized experts.

This criterion may be met by submitting reference letters from a diverse group of recognized experts in the field of the foreign national’s “exceptional ability.” The letters should discuss both the foreign national’s accomplishments and where those accomplishments have been recognized. In other words, the recognition must be international in scope, meaning that the letter writers should come from different parts of the world, not just one country, or the letters should refer to the foreign national’s accomplishments in various countries.

2. The foreign national’s work in the field during the past year did, and the foreign national’s intended work in the United States will, require exceptional ability.

This criterion involves proving three points: 1) the foreign national has at least one year of experience; 2) the foreign national’s work during the past year required exceptional ability; and 3) the future work in the U.S. will require exceptional ability.

To establish the first point, the experience must have been gained during the year prior to application. In other words, if an applicant worked for a year, then took a year off, and now wants to apply under this program, he will not be eligible. He must return to work again for a year before applying.

For the second and third points, the foreign national should submit letters from recognized experts explaining how the past and future work can only be performed by someone with the “exceptional ability” such as the foreign national. In addition, the foreign national’s employer(s), past and future, should also submit letters confirming the past and future positions require someone with exceptional skills.

3. Confirmation the foreign national has fulfilled at least two of the following seven categories:

• Documentation of the foreign national’s receipt of internationally recognized prizes or awards for excellence in the field for which certification is sought;

• Documentation of the foreign national’s membership in international associations, in the field for which certification is sought, which require outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields;

• Published material in professional publications about the foreign national, about the foreign national’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 foreign national’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 foreign national’s original scientific or scholarly research contributions of major significance in the field for which certification is sought;

• Evidence of the foreign national’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 foreign national’s work, in the field for which certification is sought, at artistic exhibitions in more than one country.

Performing Arts

This group includes foreign nationals of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.

How to Prove “Exceptional Ability” in the Performing Arts

To prove a foreign national has the requisite “exceptional ability,” the employer must file documentary evidence showing: 1) the foreign national’s work during the past year did, and the foreign national’s work will, require exceptional ability; and 2) must submit documentation to show this exceptional ability. The DOL provides a list of suggested documentation, as follows, but does not specify how many of the categories must be addressed. The more evidence submitted, however, the greater the chance of success. The evidence requested by DOL includes:

• Documentation attesting to the current widespread acclaim and international recognition accorded to the foreign national, and receipt of internationally recognized prizes or awards for excellence;

• Published material by or about the foreign national, such as critical reviews or articles in major newspapers, periodicals, and/or trade journals (the title, date, and author of such material shall be indicated);

• 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 foreign national has appeared or is scheduled to appear; and/or

• Documents attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the foreign national has performed during the past year in a leading or starring capacity.

Other General Requirements: Prior to submission of the application, the employer is required to post notice of the intended labor certification filing at the place of the foreign national’s employment for 10 days. It also must be posted in any in-house media normally used to recruit for similar positions.

The foreign national’s pay must be equal to or more than the state workforce agency’s prevailing wage determination.

Application Process: The employer must fill out and sign the labor certification form (Form ETA 9089) and submit it in duplicate to USCIS along with the I-140 and all supporting documentation. Whether the foreign national should apply for EB-2 or EB-3 will depend on the foreign national’s qualifications and other considerations such as visa availability.

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