Avoiding the Lengthy and Cumbersome Labor Certification Process: Introduction and Comparison of Schedule A and National Interest Waiver (NIW)

Obtaining labor certification is the pre-filing step for most EB-2 and EB-3 categories. However, it is a long and complicated process. Understanding which categorization does not require or waives a labor certification is important for potential seekers of permanent residency via employment-based immigrant visas. A labor certification is not required in priority workers visas as we discussed before. Petitions for all three groups of priority workers do not need to go through the process of obtaining a labor certification. In addition, a labor certification can be “waived “ in the category of National Interest Waiver and a simplified process is applied to Schedule A.

Schedule A

Foreign nationals who seek to immigrate based on employment in fields for which the DOL (U.S. Department of Labor) has predetermined that there is a chronic shortage of U.S. workers do not need to have their employer apply for an individual labor certification. These fields are listed in Schedule A of the DOL regulations. If a field of employment is listed on Schedule A, the employer need not conduct a recruitment campaign or obtain an individual DOL certification of its application; instead, it files the labor certification application directly with the USCIS, together with the preference petition in the second or third employment-based preference. The USCIS determines whether the foreign national meets the standards specified by the DOL to qualify in a precertified occupation. If the USCIS determines that the foreign national does not fit within one of the categories accorded precertification by the DOL, the foreign national is referred back to the DOL to go through the individual labor certification procedures.

National Interest Waiver

A foreign person, who is qualified in EB-2 group, may seek a waiver of the offer of employment by establishing that his admission to permanent residence would be in the “national interest “. The procedure is to file Form I-140 together with evidence to establish that the foreign person’s admission to the United States for permanent residence would be in the national interest. In addition, physicians who agree to work for at least five years in areas with a shortage of health care professionals are entitled to national interest waivers if a federal or state agency attests that their work will be in the public interest.

Comparison of Schedule A and National Interest Waiver

NIW and Schedule A are different in several major ways. First, Schedule A provides for pre-certification of a job, and not for a waiver of the job offer. A labor certification still needs to be filed with USCIS. Therefore, a Schedule A argument is inappropriate in self-petitioning cases. A Schedule A petitioner is the employer of the foreign person and the foreign person is the beneficiary. Second, the “exceptional ability “ criteria for pre-certification of a job offer under Schedule A Group II are different from the “exceptional ability “ criteria for second preference classification. Specifically, second preference exceptional ability refers to exceptional ability in the sciences, arts or business, while Schedule A Group II exceptional ability refers to exceptional ability only in the sciences or arts, but with “science or art “ defined as any field in which college or university degrees are awarded. Moreover, to qualify for second preference classification on the basis of exceptional ability in the sciences, arts or business, one must have a degree of expertise “significantly above that ordinarily encountered in the field, “ and must meet three of six criteria, summarized as follows:

1. a degree, diploma, certificate or similar award related to the area of exceptional ability from a college, university, school or other institution of learning;
2. at least 10 years of full-time experience in the occupation for which one is being sought;
3. a professional license or a certification to practice in the occupation;
4. evidence of having commanded a high level of compensation for one’s work;
5. membership in professional associations;
6. recognition by peers, government or business/professional organizations for one’s achievements and significant contributions; or

If the above criteria are not readily applicable to one’s particular occupation, other comparable evidence of exceptional ability. On the other hand, to qualify for pre-certification of a job offer on the basis of Schedule A Group II exceptional ability, one must meet two mandatory criteria and at least two of seven additional criteria, as follows:

1. Widespread acclaim and international recognition accorded by experts in the field; and
2. work in the field in the past year did, and intended work will, require exceptional ability; and
3. at least two of the following seven elements:
   • internationally recognized prizes or awards;
   • memberships in international associations that require outstanding achievements;
   • published material about the individual relating to his/her work;
   • having been a judge of others’ work in the field;
   • original contributions of major significance in the field;
   • authorship of published articles in internationally circulated media; or
   • having displayed work at artistic exhibitions in more than one country.

To sum up, potential seekers of employment-based immigrant visas may be confused by Schedule A and National Interest Waiver. But keep in mind that only applicants of NIW can self-petition. The differences of two categories should be carefully distinguished.