In previous weeks we discussed the possibility of filing 2nd preference exceptional ability petitions for third preference cases containing minimum requirements in accordance with DOL standards.
We noted that the DHS rule states,
(ii) 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 renumeration 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.
However, the DHS rule goes on to state, "The job offer portion of the individual labor certification, Schedule A application, or Pilot Program application must demonstrate that the job requires a professional holding an advanced degree or the equivalent or an alien of exceptional ability."
The rule has been read to mean that the individual labor certification must state the exceptional ability standards as minimum requirements. However, this view is clearly incompatible with the DOL rule, because there is no way for an employer to "demonstrate that the job requires an alien of exceptional ability."
For example, there are no jobs listed in the O*Net that permit an applicant to "demonstrate" the six criteria on the DOL Form 9089, and DOL holds as an essential truth that individual labor certifications may only be approved for employers who accept minimally qualified workers as opposed to requiring exceptionally qualified workers. Although DOL will certify applications with requirements in excess of the O*NET, the Employer must provide business necessity documentation which would be difficult if not impossible for exceptional aliens, depending on the specific occupation and the criteria being considered. The exceptional ability criteria apply across the board to any occupation, but even job zone five occupations do not permit employers to apply for certification for exceptional aliens.
One point to keep in mind is that if the applicant has "exceptional" qualifications, they might be reflected in some way, even if only indirectly, in the application process. This could occur, for example, in the request for prevailing wage. Remember that the prevailing wage determination has a two pronged approach. One is to determine the prevailing wage on the basis of the level of preparation and the other on the point system. The May 9 2005 prevailing wage FAQ issued by DOL contains a lengthy and detailed discussion.
Based on the Employer's prevailing wage application submitted to the State Workforce Agency, which is part of the record file for PERM cases, some jobs might be characterized as requiring exceptional alien. A wage range, where the job offer with minimum requirements is at the low range, and the higher end reflecting more experience could demonstrate the need for an exceptional person, while at the same time not exceeding the DOL notion of minimum requirements.
Note that the alien's high wages in the past may be explained and documented in a cover letter to the I-140. Because the criteria refers to past wages, and not to the job offer, there is no place on the ETA Form to indicate that the alien had high wages in the past!
As to certificates, licenses and diplomas, they might have been listed on the ETA Form but not always. For example, it is not necessary for an employer to list as its minimum requirements licenses that are required by law to perform the job duties in the jurisdiction where the job is offered. Here again, we should not confuse the request for prevailing wage, where licenses must be listed as part of the point system to achieve an accurate prevailing wage, with the minimum requirement section of the ETA Form. They are two different things.
Thus, if a license is required for a teacher, this would appear on the prevailing wage application presented to the SWA, but if the license is a state or other jurisdictional requirement, then it need not be put on the ETA Form, unless it is a "special requirement" proposed by the employer. If the job could be performed by a licensed or unlicensed person, then the license might be listed on the ETA Form. An example might be a teacher, who must normally have a license, but if hired by a school (private or otherwise) where a license is not required, then the license would be listed on the ETA Form if it is the employer's requirement, not the jurisdiction's requirement. The license, if not listed on the ETA Form, could be explained in an addendum to the I-140 as a legitimate requirement, but one which need not be stated on the form.
Another criteria, such as a substantial contribution to an employer's business, would be listed not on the job offer part of the ETA Form, but on the statement of alien's qualifications. Nevertheless, it is possible for the criteria may be read into the job description. This would occur because the entire O*NET report is a legitimate representation of the standards and conditions pertaining to the job opportunity and are incorporated by reference into the definition of the occupation, even if not specifically stated on the ETA Form. This an obvious fact, because if the report were not incorporated, then it would have to be written on Form 9089, a task which would take more than the entire 1 1/4 hours estimated by the OMB to complete the entire PERM application.
Evidence of membership in professional associations is a criteria that cannot or need not normally be listed on the ETA Form as a statement of requirement. As in the case of licenses above, if a professional association is a requirement by action of law, to perform the job duties, then it need not be listed on the ETA Form as part of the employer's minimum requirement. And if the alien is a member of a professional association specifically required by the employer, it should be listed on the ETA Form. However, if the alien is a member of a professional association, and the employer does not narrow its requirements to that specific professional association, then the alien's qualification would not have any way to appear on the ETA Form in the job offer section, and would have to be listed in a separate statement or addendum to accompany the I-140 petition.
Principles of statutory and regulatory construction may also be applied to consider the meaning of the statue and whether the regulatory requirement that the six criteria be "demonstrated" on the ETA Form in the job offer section, is ultra vires. I will address these issues next week. However, for the time being, it seems that an ad hoc approach may be successfully used to "bump" up from 3rd to 2nd preference.