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Bloggings: May 28, 2008

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

Not everyone needs a PERM Case!

It's a good exercise to review the types of cases that do NOT require a PERM case.

The ones listed on "Schedule A" of the PERM Rule, include a number of positions that are pre-certified Physical Therapists Persons who will be employed as physical therapists. Physical therapists include those who are ready to take the physical therapist licensing examination in the state in which they propose to practice physical therapy. These persons do not have to prove that they have passed the examination, but simply prove that they are “ready” to take the examination. It may be assumed this means those who have fulfilled the pre-exam requirements for a specific jurisdiction or a national standard if there is one.

This policy differs from the general rule that applicants for alien labor certification must be fully licensed before they can apply for and receive a labor certification from the Secretary of Labor. The favorable treatment of Physical Therapists gives them not only an exception to the requirement for labor certification but grants an exception to the requirement of pre-licensing. The regulation does not state what would happen if a physical therapist obtained a labor certification, applied for and obtained permanent residency, and still did not take, complete or pass the physical therapist licensing examination in the jurisdiction in which he or she proposed to practice physical therapy. Under PERM, the distinction between physical therapists and professional nurses is that the latter require licensing before approval, but nurses may now qualify by means of a broader range of exams than before. Under pre-PERM regulations, nurses had to pass the CGFNS, while under PERM they may pass the NCLEX.The NCLEX test was legitimized by a 2002 memorandum from the Department of Homeland Security and has now been codified in the DOL regulations.

Nurses still have the CGNFS option but must obtain the certificate itself and pass the nursing exam. DOL rejected proposals to permit professional nurses with temporary licenses to obtain labor certification. Proponents had suggested that the requirements for a temporary license were tantamount to the requirements for a permanent license, however, in the final version, DOL stated that by adding the NCLEX test as an option, there would be uniformity in the application procedure and most nurses with temporary licenses would qualify under one of the three regulatory options. The corresponding pre-PERM provision referred to Group No. 075 “Professional Nurses” in the D.O.T.: “This group includes occupations concerned with administering nursing care to the ill or injured. Includes nursing administration and instruction; and public health, industrial, private duty, and surgical nursing. Licensing or registration is required.” The significant feature in this pre-PERM definition of Professional Nurse was the fact that not only nurses who gave patient care were subject to the licensing or registration requirements, but nursing positions not involving patient care were also not certifiable unless the worker possessed full licensing or registration requirements to work as a registered nurse. Jobs without direct patient care include nursing consultants, directors, deans, executives, instructors, aides, supervisors, and coordinators.

The new PERM definition for Professional Nurses dropped the reference to Group No. 075 in the D.O.T. Licensing is still required for nurses who wish to provide patient care as defined in PERM under Section 656.5(a)(3)(ii), however, there is no longer a licensing limitation for nurses who plan to work in administrative, educational and research positions and apply under the basic labor certification process described in §656.17. The standard for aliens of exceptional ability is lower than that for aliens of extraordinary ability. The term “science or art” is more broadly defined than the “professional” category. In the latter the alien must seek to fill an occupation that requires a degree, whereas in the instant category the alien seeks to practice in any “field” for which a university commonly offers specialized courses. Aliens will be able to qualify for this schedule based on a combination of education, experience and training, even if they do not possess a university diploma. This applies the “combination of education, experience and training” concept fairly to aliens. Elsewhere in PERM U.S. workers may be judged qualified by the same standards, as when the C.O. considers availability of job applicants as a result of recruitment efforts.

The DOL does not require a specific formula to determine non-degreed qualifications such as three years of experience for one year of college, but may qualify by documenting one of the seven groups permitted. An additional requirement is that the alien’s work occurred during the past year, while EB-1 extraordinary ability aliens need not show such recent work experience. The DOL suggested types of documentation about aliens of exceptional ability in the Performing Arts, but does not mandate specific documentation from pre-defined groups as in group one above. The term “exceptional ability” is not defined in the list of definitions at §656.3. One might look to other parts of the INA to determine whether an alien has exceptional ability in performing arts.

The standard used under Second Preference EB-2 adjudications is whether there is a degree of expertise above that ordinarily encountered and whether the alien attained a level of or recognition by colleagues as possessing exceptional ability, i.e., an unusual, unique or extraordinary talent. Opinions of qualified persons should be offered to support an application for exceptional ability through carefully drafted letters documenting the alien’s exceptional ability.