Schedule A
The Department of Labor concedes that the labor certification process may be expensive, burdensome, and time-consuming. It estimates that the nationwide average for labor certification processing is about nine months. The administrative requirements of the process are almost as burdensome for the government as they are for the employer.
To help alleviate this burden, the Labor Department may designate certain occupations which it determines are chronically short of workers and exempt employers of such workers from the labor certification process. Shortage occupations are listed on the Labor Department's "Schedule A, Group I." At present, Group I lists only two "precertified" occupations: registered nurses and physical therapists, thus relieving hospitals and other health-care providers of the labor certification burden in hiring individuals in these occupations.
Schedule A also contains a "Group II," which consists of positions requiring aliens of exceptional ability in the sciences or arts (which includes college or university teachers but not performing artists). Aliens falling within this Group II must satisfy at least two of seven criteria to establish that they are "exceptional."
While these blanket precertifications are established by Labor Department regulations, it is the INS which makes the determination of whether an individual case qualifies. In Schedule A cases, forms ETA-750A and B are filed directly with the INS along with an immigrant visa petition. Employers are not, however, exempt from all labor certification duties -- even when a position falls within the listings of Schedule A, the employer must still post notice of the opening and notify the proper governmental authorities.
New Employment-Based Categories
After observing employer's frustrations for over a quarter century, Congress concluded that the labor certification process should be streamlined, especially for top professional positions. The Immigration Act of 1990 rewrote much of our employment-related immigration provisions. That law created a new classification scheme for employment-based immigrants and exempted many of them from the labor certification process.
The exempt categories are reserved for the best, the brightest, the specially-qualified, and the unique. Employers are only beginning to learn and appreciate the significant distinctions between the new classifications, and attorneys who represent employers should be aware that their clients can benefit from familiarity with the new immigration law.
Gone are the old immigration groupings. In place of the "third" (professional) and "sixth" (skilled and unskilled) preferences, there are now five "employment-based" or EB categories: EB-1 (priority workers), EB-2 (workers with advanced degrees or with exceptional ability), EB-3 (professionals, skilled workers, and unskilled workers), EB-4 (special immigrants, mostly ministers and religious workers), and EB-5 (investors). Of primary importance to employers, only two of these five categories -- EB-2 and EB-3 -- require labor certification.
The fifth category, investors, is not so much an employment-based category as an employment-creating one. EB-5 is reserved for would-be immigrants who invest $1 million (or $500,000 in rural or high-unemployment areas) to create ten or more jobs for U.S. workers. In essence, there is nothing to certify.
The fourth category, created for ministers and religious workers, replaces the labor certification requirement with a requirement of demonstrated affiliation with the employer. The value of a minister or religious worker is arguably unquantifiable, and a position with a church or other religious organization, at least in the abstract, is not appropriate for labor certification.
The remaining exempt category is the prized EB-1 class -- priority workers. Some have nicknamed the EB-1 class "Einstein visas" because they are earmarked for high calibre professionals. Others call it the "Michael visa," because it is the one category in which Michael Jordan, Michael Jackson, and Michelangelo would all fit. However whimsical the characterization, the priority worker classification is aptly named because the special skills, talents, or accomplishments of these aliens make them so valuable that labor certification would be a foregone conclusion.
Priority workers are broken down into three subcategories -- aliens of extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.
By definition, an extraordinary ability worker is one who belongs to that "small percentage" that have "risen to the very top of the field of endeavor." In fact, aliens qualifying for this category are so unique that they do not even require a job offer to enter the country. The statute requires that the alien's admission substantially benefit the United States. The documentation requirements are demanding. The worker must generally satisfy at least three of the following ten criteria: (1) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (2) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (3) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation; (4) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought; (5) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; (6) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media; (7) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases; (8) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; (9) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or (10) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
The exemption from the labor certification process for companies who hire extraordinary individuals has been significant. Recently, when a major biotechnology company sought to petition for priority worker status for a scientist who had developed a novel process for mass-producing white blood cells to aid chemotherapy patients in resisting infections, the entire green card process was reduced from 18 months to less than half that time. As a result, many lives were saved and hundreds of new jobs were created for U.S. workers.
The second subcategory -- for professors and researchers -- requires the alien to be internationally recognized as outstanding in his or her specific academic area and to meet certain other requirements (such as three years teaching or researching experience in the field and arriving to take a tenure or tenure- track position). These workers need only satisfy two of the following criteria: (1) Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field; (2) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members; (3) Published material in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation; (4) Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field; (5) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or (6) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field. Private companies may petition for a researcher if they have at least three full-time research employees and are themselves accomplished in the field. Interestingly, the statute does not require a Ph.D. or the equivalent to qualify.
The third subcategory -- for multinational executives and managers -- is perhaps the most often utilized by employers. The immigrant must have been employed in a managerial or executive capacity for at least one out of the past three years. The past employment must be with the same employer, an affiliate, or a parent or subsidiary. The petitioning employer must have been doing business in the United States for at least a year. The Immigration Act of 1990 added increased flexibility to the definitions of executive and manager. Possession of a university degree is not required to qualify under this category.
Many employers would, no doubt, prefer to classify their prospective employees as priority workers and be exempt from the labor certification requirement. However, in reality, more job candidates will qualify under the second category, workers with exceptional ability, or those in possession of an advanced degree. For purposes of the EB-2 category, possession of an advanced degree includes those holding a bachelor's degree plus five years of progressive professional experience. For these employers, there is an exception to the labor certification process in some cases. Even if a worker is exceptional or hold an advanced degree, he is not properly classifiable under the EB-2 category unless the offer of employment requires a person of such caliber.
A limited exception to the labor certification requirement exists for EB-2 workers whose entry to the U.S. would be "in the national interest." Neither statute nor regulation defines what the national interest means in this instance. However, in a recent case, the Administrative Appeals Unit (AAU) of INS set forth the following seven factors which may be considered in defining national interest: Would the alien's employment (1) improve the U.S. economy, (2) improve the wages and working conditions of U.S. workers, (3) improve education and training programs for U.S. children and under-qualified workers, (4) improve health care, (5) provide more affordable housing for young and/or older poorer U.S. residents, (6) improve the environment and make more productive use of natural resources, or (7) did the alien come at the request of a U.S. Government agency? In this instance, the AAU was satisfied by the alien's employment resulting in the reopening of a plant that created important local employment. While this area is still in its nascent stages, the national interest waiver has already proven to be an important tool for employers seeking to hire exceptional workers and workers with advanced degrees.
Originally, many practitioners assumed that the national interest provisions of the 1990 law would be interpreted narrowly by the Immigration Service, and would require the intervention of an agency of the federal government. However, more recently, an affirmative action counselor at a local community college was successful in obtaining a national interest waiver despite the absence of any sponsorship by a federal agency. Prior law would not have permitted the employment of the counselor since internal policies did not permit the college to modify their hiring practices to conform with the Labor Department's recruitment requirements for labor certification cases.
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