USCIS Adopts DOL’s Definition of “Science or Art” for Schedule A PERM Filings

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.

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On December 21, 2023, the Department of Labor (DOL) published a Request for Information (RFI) soliciting input on occupations to add to “Schedule A,” the list of occupations eligible for streamlined green card processing. Specifically, DOL solicits input on STEM and other occupations for which U.S. workers are considered to be in short supply, as called for by a recent Executive Order on Artificial Intelligence (AI).

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On October 6th, 2020, The Department of Homeland Security (DHS) and Department of Labor (DOL) announced that they will publish new regulations that would significantly impact the rules governing the H-1B visa, as well as wage requirements in connection with the H-1B, H-1B1 and E-3 visas and the PERM labor certification process.

Both rules are expected to be published as Interim Final Rules (IFRs) in the Federal Register on Thursday, October 8th. The DHS Rule will take effect 60 days after publication and while stakeholders can comment on the rule during this 60 day period, comments will not be considered before the rule takes effect. The DOL Rule will take effect immediately upon publication and will not have a delayed effective date, though DOL will accept public comments for 30 days. Both rules are likely to be challenged in court, meaning that injunctions could halt their implementation, at least temporarily, pending litigation.

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The Department of Homeland Security (DHS) and Department of Labor (DOL) are in the process of introducing new regulations that would significantly impact the rules governing the H-1B visa as well as wages used in connection with the PERM labor certification process.

Both rules are expected to be published as Interim Final Rules (IFRs) in the Federal Register on Thursday, October 8th. Because they are being published as IFRs the agencies are able to forgo the normal notice and comment period. The DHS Rule will take effect 60 days after publication. The DOL Rule will take effect immediately upon publication and will not have a delayed effective date.

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