We’ve received a lot of questions on Schedule A since USCIS issued a policy alert in April 2024 updating the definition of “science or art” for Schedule A, Group II designation, so we set out to answer this question for ourselves – is it ever worth filing under Schedule A, Group II?
What is Schedule A?
The basic principle of employment-based green card sponsorship in the U.S. (with limited exceptions) is that the government will allow an employer to sponsor a foreign national for permanent residency (aka a “green card”), but only if the employer can first demonstrate, through a test of the U.S. labor market (“PERM”), that there aren’t any minimally qualified, willing, able, and available U.S. workers who could do the job. Schedule A is one such exception in that the U.S. Department of Labor (“DOL”), the agency that administers the PERM program, has already acknowledged a shortage of U.S. workers in certain occupations and waived the labor market test requirement. These occupations include physical therapists and nurses (Group I) and immigrants of exceptional ability in the sciences or arts, including the performing arts (Group II). While the use of Schedule A Group I is common, Schedule A Group II has historically been an under-utilized category, for reasons we will detail below.
Basic Requirements
The initial eligibility requirements for Schedule A, Group II designation look very similar to, and in fact share, some of the regulations for PERM:
The employee must have a bona-fide, permanent, full-time job offer from a sponsoring employer;
The sponsoring employer must obtain a prevailing wage determination from the DOL;
The sponsoring employer must have the ability to pay the required wage;
A notice to existing employees (“Notice of Filing”) must be posted at the worksite, in a conspicuous location, for at least 10 consecutive business days, detailing the job description and rate of pay.
Exceptional Ability
After these initial requirements have been met, the employer must demonstrate that the sponsored employee has exceptional ability in the sciences or arts, and at this point we pivot away from PERM and find ourselves somewhere that feels a lot like EB-1 territory. To demonstrate that an employee has exceptional ability in the sciences or arts, the employer must submit evidence of widespread acclaim and international recognition (and note that this standard excludes performing arts, which have a separate set of eligibility criteria that were called out more clearly in the April policy update, and which are not the focus of this article). And this brings us to the main update from the USCIS policy alert: USCIS confirmed that the agency will follow DOL’s regulatory definition of science or art when adjudicating Schedule A petitions, and DOL defines science or art quite broadly as any field in which a college or university offers specialized courses that will lead to a degree in that field. This also means that applicants are not actually required to have studied at a college or university to qualify for Schedule A, Group II designation.
Additionally, the employer will need to demonstrate both that the sponsored employee’s work in their field of expertise did require exceptional ability in the past year and that their intended work in the U.S. will also require exceptional ability.
How to Demonstrate Exceptional Ability in the Sciences and Arts
The employer must submit evidence showing that the sponsored employee meets at least two out of the following seven eligibility criteria:
Internationally recognized prizes or awards for excellence in the field;
Membership in international associations in the field that require outstanding achievement of their members;
Published material in professional publications about the beneficiary and/or the beneficiary’s work;
Service as a judge of the work of others in the field;
Original scientific or scholarly research contributions of major significance in the field;
Authorship of published scientific or scholarly articles in international professional journals or professional journals with an international circulation; and
Work displayed at artistic exhibitions in more than one country.
As a reminder, these are the eligibility criteria for “sciences and arts.” There are separate criteria for performing artists, which we will review in detail another time.
Preference Category (Exceptional Ability vs. Exceptional Ability)
The preference category for a Schedule A, Group II petition depends on the requirements for the position. While it would seem logical for a petition being filed for an employee with exceptional ability to fall under the employment-based second preference category (which is reserved for advanced degree professionals or individuals with exceptional ability), it’s possible the petition could be filed under the employment-based third preference category (for professionals and skilled workers). And in the context of the preference category, the term “exceptional ability” has an entirely different meaning and set of eligibility criteria than the “exceptional ability” required for Schedule A, Group II classification (outlined above). In case we’ve lost you, “exceptional ability” in the DOL’s Schedule A context refers to “widespread acclaim and international recognition” accorded the beneficiary by recognized experts in the field, whereas “exceptional ability” in the USCIS preference category context refers to a beneficiary who has “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business” and comes with a different set of eligibility criteria. In other words, it’s possible to demonstrate the required exceptional ability for Schedule A, Group II classification, but not for classification under the EB-2 preference category, and vice versa. And as with PERM, the minimum job requirements disclosed on the (uncertified) labor certification application that will be filed with USCIS must reflect the actual minimum requirements for the role, and the job duties should be appropriate for the occupation.
Filing Requirements and Adjudication
To summarize, an employer sponsoring an employee for Schedule A, Group II designation must submit the following to USCIS:
Form I-140, Petition for Immigrant Worker;
Uncertified application for Permanent Employment Certification (ETA 9089);
Prevailing wage determination with the appropriate validity period;
Copy of appropriately posted Notice of Filing;
Evidence the employee meets the DOL requirements for Schedule A designation (exceptional ability);
Evidence the employer has the ability to pay the offered wage; and
Evidence the employee meets all other requirements for the position detailed on the ETA 9089.
If USCIS denies the Permanent Employment Certification application, the employer cannot then appeal that denial to BALCA (i.e., the process for PERM appeals does not apply here; rather, the employer would follow the USCIS appeals process by filing with the Administrative Appeals Office), though the employer could then follow the basic labor certification process (PERM, which requires a test of the U.S. labor market) to sponsor the employee for permanent residency.
Takeaways
Now, back to our initial question – is it ever worth it to file for Schedule A, Group II designation for individuals working in the sciences and arts? Our opinion is that in most circumstances, no, it probably isn’t. With its mash-up of PERM and EB-1 concepts, Schedule A, Group II presents a set of hurdles for most companies and employees that make it generally unappealing (which explains its infrequent usage): 1) the need for a sponsoring employer; 2) the mandatory prefiling steps (and associated lengthy wait times) of securing a prevailing wage determination from the Department of Labor; 3) the onerous burden of meeting the exceptional ability criteria for a petition that will at best result in an EB-2 approval; and 4) the uncertain outcome that results from a set of discretionary and subjective eligibility criteria.
On the other hand, persistent layoffs over the past couple years have made it impossible for some companies to sponsor foreign national employees through PERM (we’ve explained the reasons for this in a prior post dedicated to layoffs). Additionally, DOL processing delays have become so significant (at this point, an average PERM application can take 1.5-2 years from start to finish) that PERM is no longer a viable solution for employees who are running out of H-1B time. Under these circumstances, it's possible that Schedule A, Group II could be a workable alternate green card sponsorship option. However, for the benefits of Schedule A, Group II classification to outweigh those of other PERM alternatives like EB-1 and NIW, you'd be restricted to those individuals who can't meet the bar to qualify for EB-1 classification and who either are not working in an area of substantial merit and national importance to the U.S. or who don't meet the requirements for EB-2 classification to qualify for a National Interest Waiver (i.e., those who do not possess an advanced degree or a bachelor's plus five years of experience and who cannot meet the eligibility criteria for EB-2 exceptional ability). In other words, the pool of individuals who would qualify under Schedule A, Group II, but who would not also qualify under either EB-1 or NIW, is rather limited, and both EB-1 and NIW have significant advantages, which we are happy to discuss in detail if you are considering pursuing any of these options.
We hope this has been helpful and as always, please remember that this post is for informational purposes only and is not intended to be used as legal advice. If you would like to discuss your eligibility for green card sponsorship under any of these categories, please reach out to us at info@veridian-immigration.com.
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