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.

Department of State November 2016 Visa Bulletin Summary

The Department of State released the November 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the employment-based preference categories, Application Filing dates remained unchanged.

For EB-3 India, there was modest forward movement of one week to March 8, 2005. EB-2 India there was forward movement of almost 10 months to November 1, 2007.  EB-2 China, progressed 5 months to July 15, 2012 and EB-3 China progressed 3 months to April 15, 2013.  

Final Action dates for EB-3 Worldwide and EB-3 Mexico progressed 1 month to July 1, 2016 and EB-3 Philippines progressed 4 months to April 1, 2011.

EB-5 China Final Action dates progressed 2 weeks to March 8, 2014

As of today, October 13, 2016, USCIS has not advised whether, in November 2016, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

Department of State March 2016 Visa Bulletin Summary

The Department of State released the March 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the employment-based preference category, there was forward movement in the Final Action date for EB-2 India, which advanced 2.5 months from August 1, 2008 to October 15, 2008.  The Final Action date for EB-3 India progressed just one month to July 15, 2004.  There was forward movement in both the Filing dates and the Final Action dates for EB-2 and EB-3 China.  For EB-2 China, the Filing date progressed 5 months from January 1, 2013 to June 1, 2013 and the Final Action date progressed 5 months from March 1, 2012 to August 1, 2012.  For EB-3 China the Filing date progressed 1 year and 7 months from October 1, 2013 to May 1, 2015 and the Final Action date progressed 8 months from October 1, 2012 to June 1, 2013.  Moreover, the Filing dates for EB-3 Worldwide and EB-3 Mexico will be current and the Final Action dates will progress 3 months from October 1, 2015 to January 1, 2016. EB-5 China Final Action Dates advanced by just 7 days from January 15, 2014 to January 22, 2014.  As of today, February 9, 2016, USCIS has not advised whether in March 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

 

Department of State February 2016 Visa Bulletin Summary

The Department of State released the February 2016 Visa Bulletin today.  D&S provides a Monthly Summary of the family and employment-based priority dates.  This month, there was no forward movement in any employment-based or family-based Filing Dates.  For the employment-based preference category Final Action Dates, there was forward movement for EB-2 India, which advanced 5 months from February 1, 2008 to August 1, 2008.  EB-2 China advanced one month from February 1, 2012 to March 1, 2012. EB-3 Worldwide and Mexico remained unchanged and EB-3 China, India, and the Philippines all saw forward movement of between 1 and 3 months. EB-5 China Final Action Dates advanced by just 7 days from January 8, 2014 to January 15, 2014.  As of today, January 8, 2016, USCIS has not advised whether in February 2016, it will accept adjustment of status applications for family or employment-based petitions based on filing dates, rather than final action dates. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

Department of State January 2016 Visa Bulletin Summary

The Department of State released the January 2016 Visa Bulletin today.  D&S provides a Monthly Summary of the family and employment-based priority dates.  This month, there was forward movement in the Filing Dates and the Final Action Dates for many of the family-based preference categories. For the employment-based preference categories, there was forward movement in the Final Action Date for EB-2 India, which advanced 8 months from June 1, 2007 to February 1, 2008 with the Filing Date remaining unchanged.  The Filing Date and Final Action Date for EB-2 China remained unchanged. The Final Action Dates for EB-3 Worldwide, China, India, Mexico, and the Philippines all saw forward movement of between 1 and 3 months.  The Filing Dates for EB-3 Worldwide and EB-3 Mexico advanced from September 1, 2016 to January 1, 2016, with the other EB-3 Filing Dates remaining unchanged.  The Filing Date for EB-5 China remained unchanged and the Final Action Date advanced by just under 1 month from December 15, 2013 to January 8, 2014. 

Department of State October 2015 Visa Bulletin Summary

The Department of State released the October 2015 Visa Bulletin yesterday evening in conjunction with a joint announcement with USCIS implementing revised procedures for determining immigrant visa availability.  D&S provides a monthly Summary of the family and employment based priority dates.  For October, employment based priority dates (the “Final Action” dates) for EB-2 and EB-3 India experienced a slight retrogression with EB-2 india moving back 8 months from January 1, 2006 to May 1, 2005.  However, under the new system nationals of India in the EB-2 preference category with priority dates on or before June 1, 2011, will be eligible to file the adjustment of status applications starting in October, roughly 6 years earlier than they could have filed under the prior system.  For EB-3 India, which retrogressed just over 5 months to March 8, 2004, the difference between the “Application Filing” date and “Final Action” date is less significant, allowing EB-3 Indian nationals to file their permanent residence applications approximately 1 year and 4 months earlier that under the prior system.  


There was significant forward movement in priority dates (“Final Action” dates) for EB-2 China, which progressed 6 years from January 1, 2006, to January 1, 2012.   Additionally, under the new system, EB-2 Chinese nationals with priority dates on or before May 1, 2014, are able to file their permanent residence applications starting in October, over 2 years earlier than under the previous system.  There was also significant forward movement in EB-3 China of almost 7 years with priority dates (“Final Action” dates) moving forward from December 22, 2004 to October 15, 2011.  Additionally, starting in October, EB-3 Chinese nationals with priority dates on or before October 1, 2013 will be able to file their permanent resident applications, almost 2 years earlier than under the earlier system.

 

UPDATE: On September 25, 2015 USCIS and DOS issued a revised visa bulletin which supersedes the bulletin issued on September 9, 2015.  For more details on the official announcement please read our D&S summary.

DEPARTMENT OF STATE SEPTEMBER 2015 VISA BULLETIN SUMMARY

The Department of State released the September 2015 Visa Bulletin today.  D&S provides a monthly Summary of the family and employment based priority dates.  This month, there was forward movement in most family-based and employment-based visa categories with the exception of EB-2 India and China, both of which retrogressed to January 1, 2006 (a retrogression of almost 3 years for EB-2 India and almost 8 years for EB-2 China).  EB-3 India and China both progressed over 6 months from June 1, 2004 to December 22, 2004.  EB-5 China, which retrogressed for the first time in June 2015, experienced a moderate progression from September 1, 2013 to September 22, 2013.