Avoiding in Labor Certification Application Schedule A Occupations
There are certain occupations which the Department of Labor (DOL) has determined lack an adequate number of able, willing and qualified U.S. workers. These high-demand occupations are designated as "Schedule A" occupations and allow employers to utilize a modified labor certification process that does not require the traditional PERM recruitment steps. Employers may use this alternate process because the DOL trusts that the employment of foreign nationals in such positions will not adversely affect the employment or working conditions of U.S. workers.
Schedule A Occupations: Group I and Group II
The Schedule A occupations are categorized by groups: Group I and Group II. The Group I occupations include physical therapists and professional nurses, and the Group II occupations are those in science, art and the performing arts.
To be employed in a Group I occupation, the foreign national must be eligible to sit for or already have passed the requisite state licensing exam in the state where they intend to practice.
The PERM regulations broadly define occupations in 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." Foreign nationals working in the sciences or art (including college and university teachers), or performing arts are eligible for Group II occupations if they are of exceptional ability, have been practicing during the year prior to the labor certification application and intend to continue to practice in the U.S. Moreover, the employer must demonstrate that the foreign national's work during the past year required, and will continue to require, exceptional ability. Notably, to qualify for a Group II occupation, a foreign national need not have attended a college or university.
Schedule A Documentation
To file a Schedule A labor certification for a Group I or Group II occupation, the employer must submit the following documentation to the reviewing Immigration Officer:
- An ETA 9089 application for permanent labor certification, including a prevailing wage determination from the State Workforce Agency (SWA) in the area of intended employment; and
- A copy of the notice provided to the bargaining representative for the occupation or, if no bargaining representative exists, a copy of the notice posted for 10 consecutive business days apprising workers in the occupation of the employer's intent to file an application for labor certification.
Group I Documentation
In addition to the basic Schedule A documentation, employers submitting an application for Group I labor certification need to include documentation of the following:
- For physical therapists, a letter or statement signed by an authorized physical therapy licensing official in the state of intended employment, stating the foreign national is qualified to take the state's written licensing examination for physical therapists; or
- For professional nurses, documentation that the foreign national has received a certificate from the Commission on Graduates of Foreign Nursing Schools; and documentation showing they have a permanent, unrestricted license to practice in the state of intended employment or they have passed the National Council Licensure Examination for Registered Nurses.
Group II Documentation
Science Or Art Occupations
Employers filing a labor certification for occupations in science or art must demonstrate to the reviewing Immigration Officer the widespread acclaim and international recognition accorded the foreign national by recognized experts in the field, including evidence from at least two of the following sources:
Performing Arts Occupations
For occupations in the performing arts, the employer must provide evidence attesting to the current widespread acclaim and international recognition accorded to the foreign national through one or more of the following:
- Documentation of the 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 (including the title, date, and author of such material);
- Documentary evidence of earnings commensurate with the claimed level of ability;
- Playbills and star billings;
- Documentation of 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
- Documentation of 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.
The ETA 9089 application for permanent labor certification and supporting documentation are submitted to one of the Department of Homeland Security's Immigration Officers for review. The Immigration Officer's determination is "conclusive and final" and, consequently, cannot be appealed.