This weekend while mapping out some PERM applications, I took into consideration the fact that the third preference is unavailable, and will probably not be available for years to come. The third preference is used by persons who have two years of experience, education or training, or a Bachelor's Degree. Then I considered a preference category other than the third preference.
PERM cases may be filed under second preference, but only if the applicants (and their PERM cases) show that the aliens qualify as persons with advanced degrees or exceptional ability.
Most applicants understand how the advanced degree option works. It allows the alien to apply in the second preference, which has visas available for most countries, provided that the alien has a master's degree or a bachelor's degree plus five years of progressive experience.
However, the second preference is not limited to persons with advanced degrees. There is another prong for persons of exceptional ability. Exceptional ability is a half-way point between average and extraordinary. Extraordinary is a very high standard and applicants apply without a PERM application through the first preference. The second and third preference categories require a PERM application.
Exceptional ability applications do not require an advanced degree. On the contrary, exceptional ability only requires the applicant to qualify under a series of conditions, and not by possessing an advanced degree. (Remember that the PERM process applies "minimum requirements" which are average requirements in the industry.) There are six conditions, and the applicant has to satisfy three of the six. The six conditions include a diploma or certificate from a course of study, 10 years of experience, a license, high salary, membership in a professional association or recognition of achievements. There is an additional condition which allows submission of appropriate evidence that does not fit in one of the other six conditions. The entire rule can be reviewed at www.uscis.gov under the "Laws and Regulations" tab. Look for "8 CFR" (DHS Regulations) and then for 204.5 "Petitions for Employment Based Immigrants."
To apply under second preference, the PERM application must show that the job requires at least three of the above mentioned conditions and that the applicant meets the stipulated requirements. A typical application might show the degree requirement (which need not be a bachelor's or advanced degree), extensive experience, and a license.
The difficulty in these cases might arise in the conflict between the DHS and DOL regulations. For example, the Employer/Petitioner cannot put down many years experience if the government guidelines do not permit that for the occupation. This requires an analysis of the SVP requirement (Specific Vocational Preference). As another example a high salary may have been offered to the alien in the past, but if a high salary will continue to be offered, it must be offered to US workers as well.
The procedure to file for an alien of exceptional ability is to prepare an I-140, obtain an approved PERM labor certification, and attach documentary evidence to prove three or more of the conditions described above.
Although an approved PERM application is normally required, there is a possibility to file a second preference petition without an approved PERM application under DOL regulations for "Schedule A." The result of this is that the application can be filed immediately with simultaneous processing by DHS for the I-140 Petition, I-485 Application for Adjustment of Status, I-765 Work Permit and I-131 Application for Travel Permit. I will discuss Schedule A and Simultaneous Processing in next week's blog.