Last week I stirred up quite a hornet's nest with a Blog about third preference skilled workers who can "bump" up to second preference. There is definitely a lot of interest in this subject, due to the current backlog of 3rd preference -- almost seven years -- and the current availability (no backlog) of 2nd preference visas for most countries.
To begin with, if you do not have an approved PERM, you can apply to DHS under the 2nd preference extraordinary ability category or under the 3rd preference exceptional ability category, but these standards are very narrow and restrictive. In actual fact, the mechanism for 2nd preference exceptional ability petition (without a separate PERM application approved by DOL) requires a Schedule A application under the DOL's precertification standards, and these standards resemble the very strict standards for 1st preference extraordinary ability.
The DHS defines "exceptional ability" by meas of six criteria, thus the term "exceptional ability" is a term of art arising out of these criteria. The regulation states,
"To show that the alien is an alien of exceptional ability in the sciences, arts, or business, the petition must be accompanied by at least three of the following:
(A) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a particular profession or occupation;
(D) Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
(iii) If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility."
Conclusion: exceptional ability petitions are viable with approved PERM certifications if the aliens can demonstrate that they have at least three of the above criteria.The idea is that an exceptional worker (one who possesses these characteristics) should be given preferential status (2nd preference) as opposed to an average worker who does not. (Note that the emphasis is on the workers past qualifications and not on the employer's prospective job requirements.)
Now that we have reviewed the DHS regulations for 2nd preference aliens of exceptional abilities, let's look at the instructions on Form I-140, which also have the force of regulations.
The Form states that petitions must be filed with an original individual labor certification (DOL) and that a "U.S. employer who is filing for a person with exceptional ability in the sciences, arts, or business must file the petition with the evidence described in (A) through (F) and (ii) above.
The Form further states that "a labor certification establishes that there are insufficient U.S. workers who are able, willing, qualified, and available to fill the position being offered to the alien at the time and place where the alien is to be employed, and that the employment of the alien, if qualified, will not adversely affect the wages and working conditions of similar employed U.S. workers.
As an application for labor certification can only be approved if the Employer states its minimum requirements, and not its preferred requirements. An exceptionally qualified alien, whose application for certification was approved under the minimal requirement standard, would have been certified because there were insufficient U.S. workers to fill the position, even at the lower, minimally qualified standard.
Since the DOL has a minimally qualified standard, and the DHS (for 2nd Preference) has an exceptionally qualified standard, it appears that the regulations are at odds with each other.
In summary, the instructions require an approved labor certification AND evidence of the alien's qualifications.
Finally, the Regulations state that "the job offer portion of the individual labor certification must demonstrate that the job requires an alien of exceptional ability.
I have reviewed the "job offer portion of the Form ETA-9089 (used for applications for labor certification filed on or after March 28, 2005, and Form ETA-750, used for applications for labor certification filed before March 28, 2005.
Form 9089 contains job offer information in Part H, and Item H-14 states, "Specific Skills or other requirements. Skills description must begin in this space." Other than H-14, there is no place on the Form where annotations regarding skills "or other requirements" may be placed.
Remembering that an employers requirements and an alien's qualifications are not equivalent, because a labor certification can be issued only for the Employer's minimum requirements and not to match the alien's exceptional requirements, how may this inconsistency be resolved?
Some of the criteria for exceptional ability are not translatable into employer requirements. For example, one of the criteria is "Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability." Clearly Item H-14 can not be used to state the alien's exceptional salary earned in previous jobs held. Another criteria that cannot be placed in H-14 is "Evidence of membership in professional associations." An alien's professional memberships pertains to the alien, not to the employer's minimum job requirements stated on an individual labor certification. And "Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations," could not be demonstrated on the job offer in H-14, because if it stated the alien's specific achievements and significant contributions it would be restrictive as applied and the application would not be certifiable. Finally, the catch-all, "If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.
In summary, to "bump" up from 3rd to 2nd preference, even with a preapproved 3rd preference I-140, the task at hand is to file an I-140 Petition for an alien of exceptional ability by blending the DHS and DOL regulatory requirements into a hybrid that demonstrates the aliens qualifications and meets the bifurcated and partly incompatible inter-agency requirements of an individual application for labor certification which "must demonstrate that the job requires...an alien of exceptional ability."
Due to the complexity of this topic, I will offer some solutions in next week's blog. In the interim, I invite my readers to kindly consider the arguments above and send e-mails with suggestions to me at email@example.com.