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Bloggings On PERM Labor Certification

by Joel Stewart

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

June 22, 2009

Second Preference without PERM

As we explained last week, 2nd preference applies not only to aliens with advanced diplomas, but also to aliens of exceptional ability, as defined by DHS regulations.

While an approved PERM case is normally required, aliens may also apply without a PERM approval under Schedule A. The regulations for Schedule A come from the Department of Labor, not from DHS.

Nothing much has changed since 1991 when Polly Webber wrote an excellent article for Immigration Briefings, "Strategies for Avoiding Labor Certification." As Polly instructed, the major methods for avoiding all or part of the labor certification process are the following:

1. Priority Workers (EB-1)

2. National Interest Waiver (EB-2)

3. Schedule A Group I or II (EB-2 or EB-3)

4. Special Immigrant (EB-4)

5. Employment Creation Immigrant Investor (EB-5)

At issue in today's Blog are applications under Schedule A. This schedule is maintained to include jobs that are pre-certified by the Department of Labor. To qualify, applicants must fill out the PERM form and attach it to the I-140 petition. DOL then determines if the I-140 petition may be approved, without further processing by DOL.

Under current DHS policy, applicants may apply for adjustment of status simultaneously with the filing of the I-140 and Schedule A PERM application. As a result, there is no delay to apply for adjustment of status. The other categories of employment visas must be processed through the DOL first. With current backlogs for PERM processing up to several years,  if an audit is required, simultaneous processing with Schedule A is an attractive alternative.

The DOL's schedule A list has always included Physical Therapists and Registered Nurses, and performing artists have now been added. Of great importance is the exceptional ability alien, who can present documentation of two out of seven categories of criteria.

In other words, if an applicant can meet the DHS requirements (discussed in last week's Blog) which are three out of seven criteria, and the DOL's Schedule A criteria, no PERM processing is required. The DOL criteria are the following:

  1. Receipt of internationally recognized prizes or awards for excellence in the field;
  2. Membership in international associations requiring outstanding achievements of their members, as judged by recognized international experts in the field or discipline;
  3. Published material about the applicant in professional publications;
  4. Proof of his or her participation as a judge of the work of others in the field;
  5. Original scientific or scholarly research contributions of major significance;
  6. Authorship of scientific or scholarly articles in international professional journals;
  7. Display of work at artistic exhibitions in more than one country.

Admittedly, these seven criteria under the DOL standard are more difficult than the DHS criteria for Exceptional Ability. An alternative to Second Preference and Schedule A is offered by EB-1 Extraordinary Ability criteria.

Back in 1991, Polly wrote about a then on-going recession: "Given the recession, the anti-immigrant climate and the resulting efforts by the DOL to clamp down on labor certification cases, practitioners should seek ways to avoid all or part of the labor certification process whenever circumstances permit; for example, in priority worker cases, or through the national interest waiver, Schedule A, or the special handling provisions."

More about these anomalies next week!