National Interest Waiver
The USCIS may waive the labor certification process if it is in the national interest. This is an attractive category because individuals may self-file without a U.S. employer. To demonstrate national interest, the petitioner must show that (a) s/he seeks employment in an area of “substantial intrinsic merit;” (b) the benefit to the U.S. will be national in scope; and (c) national interest would be adversely affected if labor certification were required.
By example, physicians in designated shortage areas to the practice of family or general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry may petition for a national interest waiver to waive the labor certification requirement.
Schedule A Group I
The Department of Labor (DOL) has continued to recognize that there is a shortage of available U.S. workers in certain occupations, and it would not be appropriate to spend time, effort, and expense in testing the labor market. These are called Schedule A occupations—a special “pre-certified” category of occupations that are exempted from the labor certification process. Schedule A consists of two groups: Group I, which includes professional nurses and physical therapists and Group II, which includes individuals of exceptional ability in the arts, sciences, and performing arts.
To qualify as a professional nurse, the beneficiary must have completed at least two years of education in nursing. Nurses educated outside of the United States must possess a valid license in their home country. In addition, the beneficiary must have (i) a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); or (ii) a permanent, full, and unrestricted license to practice professional nursing in the state of intended employment; or (iii) has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) administered by the National Council of State Boards of Nursing.
To qualify as a physical therapist, the beneficiary must have a post-baccalaureate degree in physical therapy from an accredited education program in the U.S. or overseas. Licensure is not a prerequisite to filing of a Schedule A petition for physical therapists. Rather, the foreign national need only “possess all the qualifications necessary to take the physical therapist licensing examination” in the state of intended employment.
Schedule A Group II
Individuals with exceptional abilities in sciences, arts or performing arts who are sponsored by an employer may utilize this classification to seek permanent residence. A labor certification is not required, and the petition is filed directly with the USCIS. Petitioner is required to satisfy two sets of regulations (the Department of Labor and the USCIS) in order to qualify for this immigrant classification. Generally, this category is rarely used, since it is duplicative of the EB-1 legal standards.
Our firm will prepare all necessary applications, petitions and reports, advise employers on needed documentation of recruitment efforts and required documents in support of petitions.