Key Takeaways

• On April 10, 2024, USCIS adopted the DOL’s regulatory definition of “Science or Art” for Schedule A, Group II cases.
• This change creates a new option for employers to sponsor foreign national employees for permanent residence and bypass the PERM process.
• To qualify, the beneficiary must meet certain criteria to establish that their work in the field has and will require “exceptional ability.”

On April 10, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Alert advising that it has adopted the Department of Labor’s (DOL) regulatory definition of “Science or Art” for Schedule A, Group II cases. This adoption of the DOL’s definition appears furthers the administration’s commitment to STEM (science, technology, engineering and mathematics) by providing clarity with regard to the requirements for an existing pathway for international STEM scholars, students, researchers and experts to remain in the United States. The Schedule A immigrant visa process is available for occupations for which the DOL has predetermined that there is not a sufficient number of able, willing, qualified and available U.S. workers. Employers can sponsor foreign national employees for permanent residence in Schedule A occupations without conducting a labor market test or filing Form ETA 9089 with the DOL.

As reflected in its updated Policy Manual, USCIS will now consider “any field of knowledge or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge or skill” when adjudicating Schedule A, Group II cases for beneficiaries with exceptional ability in sciences or art. This clarification potentially expands the pool of individuals who can seek permanent residence through the Schedule A, Group II path, and could be especially attractive to employers that would otherwise face the high recruitment costs and lengthy processing time for permanent labor certification, or PERM, applications.

To file a Schedule A, Group II petition, an employer must demonstrate that the beneficiary has received widespread acclaim and international recognition from recognized experts in the field. The evidence must also demonstrate that for the past year, the beneficiary’s work in the field has and will require exceptional ability. To qualify, the beneficiary must satisfy at least two of the seven criteria below.

• Documentation of the beneficiary’s receipt of internationally recognized prizes or awards for excellence in the field
• Documentation of the beneficiary’s membership in international associations, in the field, that require outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields
• Published material in professional publications about the beneficiary, about the beneficiary’s work in the field, which must include the title, date and author
• Evidence of the beneficiary’s participation on a panel or individually as a judge of the work of others in the same or an allied field of specialization
• Evidence of the beneficiary’s original scientific or scholarly research contributions of major significance in the field
• Evidence of the beneficiary’s authorship of published scientific or scholarly articles, in the field, in international professional journals or professional journals with an international circulation
• Evidence of the display of the beneficiary’s work, in the field, at artistic exhibitions in more than one country

The regulations provide separate criteria for beneficiaries in the performing arts.

This update is effective immediately and offers an alternative to PERM for individuals who may meet USCIS’ newly adopted definition of “Science or Art.” This alternative to PERM could provide a cost-effective and timely path to employment-based green cards for eligible employees. While all Schedule A cases require a prevailing wage determination from the DOL (which currently takes five to six months) and a Notice of Filing at the worksite, employers are not otherwise required to test the labor market or wait for DOL adjudication of Form ETA 9089. This could result in employers saving a year or more of processing time (based on DOL’s current 13-month adjudication timeline for PERM applications) and thousands of dollars on required ad expenses in conducting a PERM labor market test. Bypassing the PERM labor market test and lengthy adjudication of Form ETA 9089 is particularly important as foreign national employees face limited options for continued work authorization due to low H-1B cap selection rates and the continuing inability of L-1A or L-1B employees to extend their stay in the United States beyond their seven- or five-year limit.

[View source.]