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A foreign worker who falls within a Schedule A occupation follows slightly different procedures for the labor certification process. Rather than file the request for labor certification with the DOL, employers seeking certification for a Schedule A occupation file the labor certification request directly with the U.S. Citizenship and Immigration Service (USCIS).

Schedule A Occupations

The Department of Labor (DOL) reviews the U.S. labor market and designates certain occupations for inclusion in “Schedule A” at 8 C.F.R. § 656.10. For an occupation to be selected as a Schedule A occupation, the DOL must determine that there are “not sufficient United States workers who are able, willing, qualified, and available for the occupations listed, and that the wages and working conditions of United States workers similarly employed will not be adversely affected by the employment of aliens in Schedule A occupations.”

A foreign worker who falls within a Schedule A occupation follows slightly different procedures for the labor certification process. Rather than file the request for labor certification with the DOL, employers seeking certification for a Schedule A occupation file the labor certification request directly with the U.S. Citizenship and Immigration Service (USCIS). Thus, the employer is not required to go through individual advertising or recruitment as would be mandated for standard labor certifications. However, notice requirements to the employer’s employees and/or bargaining representative, if applicable, must be met. In short, the employer is allowed to bypass the process whereby the DOL determines whether the alien’s hire will adversely affect the U.S. labor force, but is still required to go through the individual determination made by the USCIS that the worker’s credentials qualify him or her for a Schedule A position.

The advantages afforded Schedule A occupations are two-fold: first, an employer saves considerable time by not having to go through the recruitment period for standard labor certifications; second, because the DOL has made a blanket determination that certain occupations suffer from a shortage of American workers and employment of foreign workers in those occupations will not adversely affect the U.S. labor force, Schedule A labor certification is valid throughout the U.S. whereas traditional labor certifications are tied to the specific geographic region where the employer intends to have the foreign national work1.

Schedule A occupations at the current time fall into two groups:

GROUP I: Persons who will be employed as physical therapists, and who possess all the qualifications necessary to take the physical therapist licensing examination in the State in which they propose to practice physical therapy; and persons who will be employed as professional nurses who have passed the Commission on Graduates of Foreign Nursing Schools Examination or who hold a full and unrestricted license to practice professional nursing in the State of intended employment.

GROUP II: Persons (except for persons in the performing arts) of exceptional ability in the sciences or arts including college and university teachers of exceptional ability 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.

The DOL regulations set forth a list of documentary evidence required for submission to for inclusion in Group II. The list is quite similar to the requirements for EB-1 “Aliens of Extraordinary Ability” classification, which was established by the Immigration Act of 1990. Indeed, Schedule A, Group II has rarely been used, and is probably unnecessary due to the new Employment Based (EB) categories brought by this Act. To qualify under Schedule A, Group II, the foreign national must present two of the following:

  • Documentation of receipt of internationally-recognized awards or prizes for excellence in the field for which certification is sought;
  • Documentation of alien’s membership in international associations, in the field for which certification is sought, which require outstanding achievement for membership;
  • Published material in professional publications about the alien, relating to the alien’s work in the field for which certification is sought;
  • Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or allied field of specialization for which certification is sought;
  • Evidence of the alien’s original scientific or scholarly research contributions of major significance in the field for which certification is sought;
  • Evidence of alien’s authorship of published scientific or scholarly articles in the field for which certification is sought, in international professional journals or professional journals with international circulation; or
  • Evidence of the display of the alien’s work ,in the field for which certification is sought, at artistic exhibitions in more than one country

Note that Schedule A, Group II “Aliens of Exceptional Ability” is a different and much higher standard than the EB-2 “Aliens of Exceptional Ability”.

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