USCIS issued new policy guidance to adopt the Department of Labor’s definition of “science or art” for certain PERM cases that bypass DOL review.
As background, while many EB-2 and EB-3 petitioners must submit a PERM to the DOL for certification before filing a Form I-140, Immigrant Visa Petition, for certain occupations referred to as “Schedule A” occupations, DOL has predetermined that there are not sufficient U.S. workers who are able, willing, qualified, and available, and employers are therefore able to submit the PERM directly to USCIS along with the I-140, bypassing the DOL.
Schedule A includes two groups, as defined by DOL: Group I, registered nurses and physical therapists; and Group II, beneficiaries with exceptional ability in the sciences or arts (except performing arts) and beneficiaries with exceptional ability in performing arts.
While USCIS already considered DOL regulations when adjudicating Schedule A occupations before this update, the updated policy guidance ensures consistency in USCIS’s application of Schedule A, and namely Group II, classifications.
USCIS’s Policy Manual now includes DOL’s definition of “science or art”: “any field of knowledge of skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge or skill.”
The policy guidance clarifies that adjudicators should not confuse the requirements for designating a beneficiary under Schedule A, Group II (immigrants of exceptional ability in the sciences or arts, including performing arts) with the requirements to classify someone under the EB-2 category (for immigrants of exceptional ability in the sciences, arts, or business). While both DOL and USCIS regulations refer to noncitizens of "exceptional ability," each regulation defines the term "exceptional ability" differently.
DOL's standard for Schedule A, Group II designation is "widespread acclaim and international recognition accorded the alien by recognized experts in the alien's field," (similar to the standard used for the EB-1A category but distinct from the EB-2 category's requirement of "a degree of expertise significantly above that ordinarily encountered.").
For Schedule A, Group II cases, the documentation required must be accompanied by evidence of exceptional ability.
Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how the updated guidance on Schedule A, Group II may apply to your circumstances, please contact your team at D&S.