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Bypassing the Labor Certification Application for Individuals of Exceptional Ability in the Sciences or Arts, Including College and University Teachers

By February 23, 2021March 23rd, 2021Immigration, National Interest Waiver
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Employers looking to hire permanent workers in occupations listed on the U.S. Department of Labor’s Schedule A, including college and university teachers of exceptional ability and individuals of exceptional ability in the sciences or arts, are able to bypass the time-consuming process of applying for a certified labor certification application through the U.S. Department of Labor (DOL).

Please note that this page will not focus on the National Interest Waiver (NIW), which is an alternative method for bypassing the Labor Certification Application for individuals whose employment in the U.S. would benefit the national interest. For more information on the National Interest Waiver, please see here.

How are individuals of exceptional ability in the sciences or arts, including college and university teachers of exceptional ability, treated differently when they apply for an employment-based green card?

In general, in order for an employer to hire a foreign worker to permanently work in the United States on an EB-2 or EB-3 employment-based green card, the employer must navigate the permanent labor certification program, or PERM process. Usually, one of the most time-consuming and complex steps of the PERM process is the requirement that the employer first test the labor market and show the government that there are no U.S. workers available to fill the position being offered to the immigrant worker.

After doing so, the employer would receive a certified labor certification application from the U.S. Department of Labor (DOL). Through its certification, the DOL confirms to the U.S. Citizenship and Immigration Services (USCIS) that “there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.” In general, it is only after the employer receives this certification that it can submit the green card application to USCIS.

But the process is streamlined for employers seeking to permanently hire individuals of exceptional ability in the sciences or arts, including college or university teachers of exceptional ability. These individuals are explicitly listed in the Schedule A (they belong to what is called “Group 2”), which means that employers looking to permanently hire them are able to bypass the time-consuming process of applying for a certified labor certification application through the DOL and can immediately file the green card application for the immigrant worker.

What does “exceptional ability” in the “sciences and arts” mean?

The government defines “exceptional ability” as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” “Sciences or arts” means “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.”

Why are individuals of exceptional ability in the sciences or arts given this preferential treatment?

The DOL has determined that there is a national shortage of college and university teachers of exceptional ability and individuals of exceptional ability in the sciences or arts. Furthermore, the DOL has concluded that the employment of foreign workers in these occupations “will not adversely affect the wages and working conditions of U.S. workers similarly employed.” As a result, the government does not require labor certification for these occupations.

How does one qualify as an individual of exceptional ability in the sciences or arts, including college and university teachers of exceptional ability?

First, it is important to distinguish those with exceptional ability in the performing arts, which has different requirements from those not in the performing arts (see below for more details).

For individuals of exceptional ability in the sciences or arts (but not in the performing arts), including college and university teachers of exceptional ability, the individual must have “been practicing their science or art during the year prior to application” and “intend to practice the same science or art in the United States.” The individual must show that their work in the field in the past year did require – and that their intended work in the U.S. will require – “exceptional ability.” The individual must also show that they have received documented, widespread acclaim and international recognition from recognized experts in their field.

Additionally, the individual must provide documentation from at least two of the following seven categories:

  1. Documentation showing the individual has received internationally recognized prizes or awards for excellence in their field;
  2. Documentation of the individual’s membership in international associations in their field that require outstanding achievement of their members (as judged by recognized international experts in their disciplines or fields);
  3. Published material in professional publications about the individual and their work in the field for which certification is sought;
  4. Evidence of the individual’s participation as a judge of the work of othersin the same or a related field of specialization;
  5. Evidence of the individual’s original scientific or scholarly research contributions of major significance in their field;
  6. Evidence of the individual’s authorship of published scientific or scholarly articles in their field in international professional journals or professional journals with an international circulation; or
  7. Evidence of the display of the individual’s work in the field for which certification is sought at artistic exhibitions in more than one country.

Finally, USCIS requires that the individual provide at least three of the following:

  • An official academic record showing that the individual has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
  • Letters documenting at least ten years of full-time experience in the occupation;
  • A license to practice the profession, or certification for the profession or occupation;
  • Evidence that the individual has commanded a salary or other remuneration for services that demonstrates exceptional ability;
  • Membership in one or more professional associations; or
  • Recognition of the individual’s achievements and significant contributions to their industry or field by peers, government entities, or professional or business organizations.
  • Note that other comparable evidence of eligibility is also acceptable.

How does one qualify as an individual of exceptional ability in the performing arts?

Individuals of exceptional ability in the performing arts must also provide evidence showing that their work experience in the past twelve months before application did require – and that their intended work in the U.S. will require – “exceptional ability.” However, the documentation requirements are different from those not in the performing arts. For those in the performing arts, exceptional ability can be shown through the following:

  1. Documentation attesting to the current widespread acclaim and international recognition given to the individual, and showing they have received internationally recognized prizes or awards for excellence;
  2. Published material by or about the individual, such as critical reviews or articles in major newspapers, periodicals, or trade journals;
  3. Documentary evidence of earnings that reflect their level of ability;
  4. Playbills and star billings;
  5. Documents attesting to the outstanding reputation of theaters, concert halls, night clubs, and other establishmentsin which the individual has appeared or is scheduled to appear; or
  6. Documents attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations with which the individual has performed during the past year in a leading or starring capacity.

As with those not in the performing arts, USCIS also requires that the individual provide at least three of the following:

  • An official academic record showing that the individual has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
  • Letters documenting at least ten years of full-time experience in the occupation;
  • A license to practice the profession, or certification for the profession or occupation;
  • Evidence that the individual has commanded a salary or other remuneration for services that demonstrates exceptional ability;
  • Membership in one or more professional associations; or
  • Recognition of the individual’s achievements and significant contributions to their industry or field by peers, government entities, or professional or business organizations.
  • Note that other comparable evidence of eligibility is also acceptable.

Can an individual who qualifies as a college or university teacher of exceptional ability or an individual of exceptional ability in the sciences or arts apply for an employment-based green card under Schedule A on their own?

No. To apply for an employment-based green card under Schedule A, a U.S. employer must file the petition on the individual’s behalf.

What is the process for applying for an employment-based green card?

Once an individual qualifies as a college or university teacher of exceptional ability or an individual of exceptional ability in the sciences or arts and satisfies the documentation requirements described above, the process is generally as follows:

  1. The individual receives a permanent job offer from an employer to work in the stated occupation.
  2. The employer files with USCIS the following:
    1. A Form I-140 petition (“Immigrant Petition for Alien Worker”), including a prevailing wage determination.
    2. A completed PERM labor certification petition (the petition does not need to have been certified by the DOL – this is the benefit of applying pursuant to Schedule A).
    3. Documentation that the employer has complied with the DOL’s notice posting rules.
    4. Proof that the individual satisfies the documentation requirements described above.

What are the notice posting rules the employer must comply with?

If the position is covered by a collective bargaining agreement, this  entails providing notice to the union representative that an application for permanent labor certification has been filed for the relevant job opportunity, and that any person may submit to the Dept. of Labor evidence bearing on the application.

If the position is not covered by a collective bargaining agreement, the employer must post a notice of the employment filing in a conspicuous place for ten consecutive business days and, additionally, in “any and all in-house media, whether electronic or printed,” that is typically used for recruitment of similar positions at the employer’s organization. The notice must be provided between 30 and 180 days before filing the application.

Are there other occupations who are able to bypass the labor certification application?

Yes, professional nurses and physical therapists may also be able to bypass the labor certification application, since they are included in what is referred to as Schedule A “Group 1.” Click here to learn more about these occupations.

For a more general overview of the Schedule A, click here.

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