Chapter 7 - Schedule A Designation Petitions

A. Background

The U.S. Department of Labor (DOL) adjudicates Applications for Permanent Employment Certification (ETA Form 9089 (PDF)), also referred to as permanent labor certifications. For certain occupations, DOL has predetermined there are not sufficient U.S. workers who are able, willing, qualified, and available pursuant to regulation.^[1] These occupations are referred to as Schedule A occupations. DOL has also determined that sheepherders are eligible for special processing.^[2]

For these two types of cases, the U.S. employer submits an uncertified application for permanent labor certification to USCIS at the time of filing the Immigrant Petition for Alien Workers (Form I-140), and USCIS reviews the application for permanent labor certification during the adjudication of the petition. USCIS applies DOL’s regulations to the application for permanent labor certification regarding whether or not the employer and beneficiary have met certain requirements, and USCIS’ regulations to the petition.

DOL requirements for Schedule A occupations and sheepherders are different from the normal requirements for other employment-based immigrant visa classifications. The fact that a petitioner can establish eligibility under DOL’s regulations only means that the permanent labor certification requirement is met. It does not mean that the beneficiary is eligible for the requested immigrant visa classification.^[3]

B. Eligibility for Schedule A Designation

In order to obtain an employment-based visa classification based on a Schedule A occupation, the petitioning employer must meet the eligibility requirements outlined in the table below.^[4]

C. Schedule A Occupations

For certain occupations, DOL has predetermined that there are not sufficient U.S. workers who are able, willing, qualified, and available. These occupations are referred to as Schedule A occupations, and the process to satisfy the permanent labor certification requirement is referred to as “blanket” labor certification. DOL has predetermined that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of noncitizens in those occupations.

The following occupations comprise Schedule A:^[6]

• Group I – physical therapists and professional nurses; and
• Group II – immigrants of exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts.

Because of the occupational shortage of these U.S. workers, DOL has “pre-certified” Schedule A occupations. This means that an employer who wishes to hire a person for a Schedule A occupation is not required to conduct a test of the labor market and apply for a permanent labor certification with DOL. Rather, this employer must apply for Schedule A designation by submitting an application for permanent labor certification to USCIS in conjunction with the petition.

D. Prevailing Wage Determinations and Notices of Filing

1. Prevailing Wage Determination

An employer must obtain a valid prevailing wage determination from DOL’s National Prevailing Wage Center (NPWC) before it can file the petition with USCIS.^[7] The prevailing wage determination ensures that the wages offered to the beneficiary are reflective of the wages offered for comparable positions at the location where the job offer exists before the petitioner files the petition. In situations where there are multiple worksites (for example, the employer is a staffing agency), if the employer knows where they will place the beneficiary, the prevailing wage is the wage applicable to the area of intended employment where the worksite is located. If an employer with multiple clients does not know where they will place the beneficiary among its multiple clients, the prevailing wage is derived from the area of its headquarters.^[8] The wage offered to the beneficiary must be no less than 100 percent of the prevailing wage.

To obtain a prevailing wage determination, the employer must file an Application for Prevailing Wage Determination (Form ETA-9141 (PDF)) with the NPWC. The NPWC processes prevailing wage determination requests under DOL regulations and guidance and provides the employer with an appropriate prevailing wage rate on Form ETA-9141.

Form ETA-9141 must contain the NPWC’s determination date, as well as the validity period of the prevailing wage determination. The validity period may not be less than 90 days or more than 1 year from the determination date. An employer must file a petition within the validity period in order to use the prevailing wage rate provided by the NPWC.^[9]

2. Notice of Filing^[10]

Notice to Employees

Before an employer can file a petition, it must have also provided a notice of the position(s) it is seeking to fill under Schedule A, Group I or II, to the employer’s bargaining representative.^[11] Alternatively, if there is no such representative, then the employer must provide notice to its employees.^[12] Such notice must be posted for at least 10 consecutive business days^[13] in a clearly visible location at the facility or location of employment.^[14]

Notice for Every Occupation or Job Classification

An employer must post a separate notice for every occupation or job classification that is the subject of a request for Schedule A designation. However, regulations do not require a separate notice for every petition seeking designation under Schedule A. For example, an employer would post separate notices for a home health nurse and an emergency room nurse because the nurses have different job duties and wage rates. An employer can satisfy the notice of posting requirements with respect to several persons in each job classification with a single notice of posting, if the title, wage, requirements, and job location are the same for each person.^[15]

Applications Filed by Private Households

In the case of a private household, notice of filing is required only if the household employs one or more U.S. workers at the time the ETA Form 9089 is filed.^[16]

Evidence of Compliance

An employer must be able to document that it complied with the notice of posting requirements.^[17]

If the employer notified its bargaining representative, then it may submit as evidence a copy of both the letter and the ETA Form 9089 sent to the bargaining representative(s). If the employer notified its employees, the documentation requirement may be satisfied by providing a copy of the posted notice and stating where it was posted, and by providing copies of all the in-house media, whether electronic or print, that were used to distribute notice of the application in accordance with the procedures used for similar positions within the employer's organization.^[18]

3. Notice of Filing: Posting Requirements^[19]

Visible and Unobstructed

During the requisite posting period, a notice to the employees must be clearly visible and unobstructed while it is posted, and it must be posted in conspicuous places where the employer’s U.S. workers can easily read the posted notice on their way to or from their place of employment. Appropriate locations include locations in the immediate vicinity of DOL-required wage and hour notices or occupational safety and health notices.^[20]

Description of Job and Rate of Pay

The notice must contain a description of the job and rate of pay and indicate that it is provided as a result of the filing of an application for permanent employment certification for the relevant position.^[21] The rate of pay must meet or exceed the prevailing wage at the time of posting. If the notice contains a range of wages, the lowest wage rate must meet or exceed the prevailing wage at the time of posting.^[22]

DOL Certifying Officer Contact Information

In addition, a notice to the employees must also state that any person may provide documentary evidence bearing on the Schedule A labor certification application to the appropriate DOL Certifying Officer holding jurisdiction over the location where the beneficiary would be physically working.^[23] The notice must also provide the address of the appropriate Certifying Officer.^[24]

Period of Posting

Finally, the notice must be posted for at least 10 consecutive business days (including weekend days and holidays if these days are regular business days for the employer, that is, the employer is “open for business” on these days). In all cases, the burden is on the employer not only to establish that they posted the notice for 10 consecutive business days, but also that it was in an area that was accessible to its employees on each of these business days.

The notice must have been posted between 30 days and 180 days before the employer filed the petition.^[25] The last day of the posting must fall at least 30 days before filing in order to provide sufficient time for interested persons to submit, if they so choose, documentary evidence bearing on the application to DOL. Officers should deny the petition and any concurrently filed Form I-485 if the notice was not posted between 30 and 180 days before the petition’s filing.

“Business Day” for Purposes of Notice

The term “business day” typically means Monday through Friday, except for federal holidays. However, where an employer is open for business on Saturdays, Sundays, or holidays, the employer may include the Saturday, Sunday, or holiday in its count of the 10 consecutive business day period required for the posting of the notice of filing.^[26]

The employer, however, must demonstrate that it was open for business on those days and employees had access to the area where they could view the notice. Similarly, where an employer is not open for business on any day of the week, including Monday through Friday, the employer should not include any such days in its count of the 10 consecutive business days period required for the posting of the notice.

“Open for Business” for Purposes of Notice

If an employer must demonstrate that it was open for business on a Saturday, Sunday, or a holiday at the time of posting, the employer must provide documentation which establishes that on those days:

• Employees were working on the premises and engaged in normal business activity;
• The worksite was open and available to clients or customers, if applicable, as well as to employees; and
• Employees had access to the area where the notice of filing was posted.

4. Notice of Filing: Posting Locations^[27]

Posting at Worksite

If the employer knows where the beneficiary will be placed, then the employer must post the notice at the worksite(s) where the beneficiary will perform the work, and publish the notice internally using in-house media (whether electronic or print) according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice is the wage applicable to the area of intended employment where the worksite is located.

If the employer currently employs relevant workers at multiple locations and does not know where the beneficiary will be placed, then the employer must post the notice at the worksite(s) of all of its locations or clients where relevant workers currently are placed, and publish the notice of filing internally using in-house media (whether electronic or print) according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question.

The situation of multiple work locations may arise in, but is not limited to, a scenario when the employer is a staffing agency which has clients under contract at the time that the employer seeks to post a timely notice of filing. In support of the petition, the employer may provide a copy of one posting notice supported by a list of all locations where the notice was posted and dates of posting in each location. The employer does not have to submit a copy of each notice.^[28]

Officers might encounter cases in which the employment is not full-time, permanent employment^[29] or where the worksite(s) is unknown and the employer has no current locations or clients. In those cases, the officer may deny the petition because no bona fide job opportunity exists.^[30]

In-house Media

An employer is required to publish the notice in all in-house media, whether electronic or print, that the employer normally uses to announce similar positions within its organization.^[31] The employer must submit as evidence a copy of all in-house media that was used to distribute notice of the application according to the procedures used for similar positions within the employer's organization.

E. Physical Therapists and Registered Nurses (Group I)

1. General Eligibility

A physical therapist is a person who applies the art and science of physical therapy to the treatment of patients with disabilities, disorders, and injuries to relieve pain, develop or restore function, and maintain performance, using physical means, such as exercise, massage, heat, water, light, and electricity, as prescribed by a physician (or a surgeon).^[32]

A professional nurse is a person who applies the art and science of nursing which reflects comprehension of principles derived from the physical, biological, and behavioral sciences. Professional nursing generally includes making clinical judgments involving the observation, care and counsel of persons requiring nursing care; administering of medicines and treatments prescribed by the physician or dentist; and participation in the activities for the promotion of health and prevention of illness in others.

A program of study for professional nurses generally includes theory and practice in clinical areas such as obstetrics, surgery, pediatrics, psychiatry, and medicine.^[33] Officers should compare the duties of the proffered position with the duties stated in the definition of “professional nurse” in determining whether the proffered position qualifies as that of a professional nurse.^[34] The classification for which the nurse is eligible depends on whether the position requires, and the beneficiary has, an advanced degree.

2. Bona Fide Job Offer

For Schedule A petitions, the petitioner must demonstrate that it is more likely than not that the petitioner is offering a bona fide full-time, permanent position.^[35] When considering this question, however, officers may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations.^[36] Specifically, there is no evidentiary requirement in the relevant and guiding statute or regulations that requires the petitioner to provide all contracts between the petitioner and its third-party clients for petitions generally and for Schedule A cases specifically.^[37] Officers may, however, review the terms of the job offer and documentation relevant to the other requirements.

The terms of the job offer are derived from the petition and ETA Form 9089. The headquarters’ worksite location and all of the potential client worksites to which the beneficiary could be assigned should be evident from the prevailing wage request and posting notice and other descriptive materials the petitioner voluntarily submits.

Other evidence related to the bona fide nature of the job offer includes that submitted to document the petitioner’s ability to pay the proffered wage.^[38] The record should also contain evidence of the beneficiary’s qualifications for the classification^[39] and any special requirements required by the job offer on the ETA Form 9089.^[40] Such evidence should illustrate that it is more likely than not that there is a bona fide job offer. An officer should be able to articulate a reasonable concern based on evidence either within or outside of the record to form the basis for a fraud referral for further investigation.

F. Evidence

1. Group I Occupations

For Group I, registered nurse occupations, the employer must submit evidence to establish that the beneficiary currently has (and had at the time of filing):

• A full, unrestricted permanent license to practice nursing in the state of intended employment;
• A certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); or
• Evidence that the beneficiary has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) as of the date of filing.^[41]

For Group I, physical therapist occupations, the employer must submit evidence to establish that the beneficiary currently has (and had at the time of filing) a permanent license to practice in the state of intended employment. Minimum requirements must meet all state licensure requirements. In the alternative, the employer may submit a letter or statement signed by an authorized state physical therapy licensing official in the state of intended employment. This letter must indicate that the beneficiary is qualified to take the written licensing examination for physical therapists.^[42]

2. Group II Occupations

Immigrants of Exceptional Ability in the Sciences or Arts

To show that a beneficiary is of exceptional ability in the sciences or arts (excluding performing arts), the employer must submit documentary evidence testifying to the widespread acclaim and international recognition accorded to the beneficiary by recognized experts in the beneficiary’s field. In addition, the employer must submit documentation showing that the beneficiary’s work in that field during the past year did, and the intended work in the United States will, require exceptional ability. Finally, the employer must submit documentation concerning the beneficiary from at least two of the following seven categories, where “field” refers to the one in which the petitioner seeks certification for the beneficiary:

• Documentation of the beneficiary's receipt of internationally recognized prizes or awards for excellence in the field;
• Documentation of the beneficiary's membership in international associations, in the field, which require outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields;
• Published material in professional publications about the beneficiary, about the beneficiary's work in the field, which must include the title, date, and author of such published material;
• Evidence of the beneficiary's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization;
• Evidence of the beneficiary's original scientific or scholarly research contributions of major significance in the field;
• Evidence of the beneficiary's authorship of published scientific or scholarly articles in the field, in international professional journals or professional journals with an international circulation; and
• Evidence of the display of the beneficiary's work, in the field, at artistic exhibitions in more than one country.^[43]

Immigrants of Exceptional Ability in the Performing Arts

To show that a noncitizen is of exceptional ability in the performing arts, the employer must submit documentary evidence that the beneficiary’s work experience during the past 12 months did, and the intended work in the United States will, require exceptional ability.^[44] Finally, the employer must submit sufficient documentation to show this exceptional ability, such as:

• Documentation attesting to the current widespread acclaim and international recognition accorded to the beneficiary, and receipt of internationally recognized prizes or awards for excellence;
• Published material by or about the beneficiary, such as critical reviews or articles in major newspapers, periodicals, or trade journals (the title, date, and author of such material must be indicated);
• Documentary evidence of earnings commensurate with the claimed level of ability;
• Playbills and star billings;
• Documents attesting to the outstanding reputation of theaters, concert halls, night clubs, and other establishments in which the beneficiary has appeared or is scheduled to appear; or
• Documents attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the beneficiary has performed during the past year in a leading or starring capacity.^[45]

G. Eligibility for Employment-based Immigrant Visa Classification

1. Physical Therapists and Professional Nurses (Group I)

For Schedule A, Group I occupations, an employer may seek to classify the beneficiary as a skilled worker or professional (employment-based 3rd preference or EB-3 category).^[46] Occasionally, an employer may seek to classify the position as an advanced degree professional (employment-based 2nd preference or EB-2 category).^[47]

The minimum requirement for professional nursing occupations is generally less than a bachelor’s degree and these occupations are therefore considered under the skilled worker classification.^[48] However, the minimum requirement for certain advanced or specialized professional nursing occupations may be a bachelor’s degree.

These occupations may be properly considered under the professional classification. In some cases, the minimum requirements may even be an advanced degree. Those occupations may be properly considered under the advanced degree classification. Officers may refer to The Occupational Information Network (O*NET)^[49] to determine the minimum educational requirements for professional nursing occupations.

According to O*NET, most physical therapist occupations require graduate school. O*NET classifies the position as a “Job Zone Five” with “extensive preparation needed.” Based on the state where the beneficiary will practice, these occupations may require a master’s degree, and some may even require a Doctor of Physical Therapy (DPT). Therefore, physical therapist occupations may be properly considered under the advanced degree professional classification if the employer can show that, based on the duties and education requirements on the ETA Form 9089, the position requires an advanced degree.

EB-2 classification is appropriate even if the state of intended employment issues physical therapist licenses to those persons who possess less than an advanced degree based on when the therapist obtained the degree (sometimes referred to as “grandfathering”).

As explained below, some states will license a person who only possess a minimum of a bachelor’s degree (and not an advanced degree) as a physical therapist based on the date the person obtained that degree.^[50] As long as an employer can show that the position requires, at a minimum, an advanced degree (including the regulatory equivalence of a bachelor of physical therapy followed by 5 years of progressive experience),^[51] for a worker to satisfactorily perform the job duties, and the physical therapist holds an advanced degree or its equivalent, then a petition may be properly considered under the advanced degree professional classification.

It is not unusual for an employer to require that the position’s duties and requirements exceed the state’s minimum licensing requirements. For example, the employer may require that the beneficiary possess an advanced degree even though the state only requires a bachelor’s degree to obtain licensure as a physical therapist. In this case, a petition may be properly considered under the advanced degree professional classification.

It is possible that the employer does not require that the position’s duties and requirements exceed the state’s minimum licensing requirements. For example, the employer may only require that the beneficiary possess a bachelor’s degree since the state only requires a bachelor’s degree to obtain licensure as a physical therapist. Since the minimum requirements are less than an advanced degree, a petition may be properly considered under the professional classification (and not under the advanced degree classification). However, the employer cannot require that the position’s duties and requirements be less than the state’s minimum licensing requirements.

An advanced degree is commonly the minimum requirement for licensure for the occupation of physical therapist. Previously, a bachelor’s degree was the minimum requirement for licensure in the occupation. As noted above, many states have “grandfathering” clauses that allow those who obtained a bachelor’s degree under the previous licensing requirements to continue working in the field. If a “grandfathered” beneficiary can show that he or she has 5 years of progressive experience following receipt of the bachelor’s degree, then he or she may be able to qualify under the advanced degree professional classification.

USCIS defines an advanced degree as any U.S. academic or professional degree or a foreign equivalent degree above that of a bachelor’s degree. USCIS considers an academic or professional degree above that of a bachelor’s degree an advanced degree if the occupation requires that degree.

Therefore, a U.S. or foreign equivalent bachelor’s degree would not qualify a beneficiary for the advanced degree professional classification, unless the beneficiary also possesses 5 years of progressive experience following the award of the bachelor’s degree.

The beneficiary must have obtained both the bachelor’s degree and the 5 years of progressive experience before the filing date of the permanent labor certification. In addition, USCIS does not consider training certifications and similar documents that are not academic or professional as advanced degrees.^[52]

2. Immigrants of Exceptional Ability (Group II)

For Schedule A, Group II occupations, an employer may seek to classify the position as an advanced degree professional or immigrant of exceptional ability.^[53] However, it is possible that an employer may seek to classify the position as a skilled worker or professional if the position does not require an advanced degree or a person of exceptional ability.

Officers should not confuse the requirements to designate 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). Though both DOL and USCIS regulations refer to noncitizens of “exceptional ability,” each regulation defines the term “exceptional ability” differently.

DOL defines “exceptional ability” for Schedule A, Group II designation as “widespread acclaim and international recognition accorded the alien by recognized experts in the alien’s field.” USCIS defines exceptional ability for purposes of the EB-2 category as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.”^[54]

DOL’s standard for Schedule A, Group II designation is therefore somewhat similar to that used to classify a person under the employment-based 1st preference (EB-1A) category (for immigrants of extraordinary ability). Despite this similarity, the standard for the EB-1A category is different than the standard for Schedule A, Group II designation. Therefore, officers should take care not to erroneously apply the standard for the EB-1A category to a request for Schedule A, Group II designation.^[55]

The granting of Schedule A, Group II designation is separate from the adjudication of the immigrant visa petition. Eligibility for Schedule A, Group II designation does not guarantee approval of the petition itself, which must be adjudicated under the relevant regulations. Meeting the requirements for Schedule A designation only means that the petition met the permanent labor certification requirement. Officers must still make a separate determination on whether the position and the beneficiary meet the requirements for the requested classification. Conversely, meeting the eligibility requirements for the classification under the USCIS definition does not establish eligibility for Schedule A, Group II designation under DOL’s regulations.

Minimum Job Requirements

Officers should ensure that the actual education, training, and experience needed to perform the job listed in Item H of ETA Form 9089 reflect the true minimum requirements of the position.

For Schedule A positions, the petitioner submits an uncertified ETA Form 9089 concurrently with the petition directly with USCIS. Therefore, in Schedule A cases, USCIS, and not DOL, reviews the ETA Form 9089 using DOL regulations. The duties shown on the permanent labor certification should be appropriate for a Schedule A occupation (such as a position that requires licensure as a professional nurse, licensure as a physical therapist, or performance of a worker of exceptional ability). If necessary, the officer may issue a Request for Evidence to confirm the precise minimum job requirements.

Self-Petitions Not Allowed

A noncitizen may not self-petition for Schedule A, Group II designation. Each request for Schedule A designation requires a job offer, and a petition that includes a request for such designation filed by a U.S. employer.

H. Filing Requirements

For all Schedule A occupations, an employer must apply for permanent labor certification with USCIS. A USCIS denial is conclusive and is not reviewable by the Board of Alien Labor Certification Appeals (BALCA) under the review procedures provided in regulations.^[56]

DOL does not certify any occupation that is a Schedule A, Group I occupation under the basic permanent labor certification process.^[57] However, if USCIS denies a permanent labor certification application filed by an employer for a Schedule A, Group II occupation, the employer may then apply for a permanent labor certification from DOL using the basic permanent labor certification process.^[58]

Required Documentation

In order to apply for Schedule A designation for petitions filed on or after March 28, 2005,^[59] the petitioning employer must complete and submit:^[60]

• A properly filed Immigrant Petition for Alien Workers (Form I-140), with appropriate filing fees;^[61]
• An uncertified Application for Permanent Employment Certification (ETA Form 9089 (PDF)), with the employer and beneficiary’s original signatures (along with any representative’s signature, if relevant);
• A prevailing wage determination issued by DOL’s NPWC, in which the validity period is not less than 90 days or more than 1 year from the determination date and the petition is filed during that validity period;^[62]
• A copy of the notice sent to an appropriate collective bargaining unit, if applicable, or a copy of the notice posted at the facility or location of the employment,^[63] documenting posting for at least 10 consecutive business days and within the period between 30 and 180 days before the employer filed the petition;
• Copies of all in-house media, whether electronic or printed, in accordance with the normal procedures used in the employer’s organization for the recruitment of positions similar to that specified on ETA Form 9089;
• Evidence that the beneficiary meets the specific DOL requirements for Schedule A designation; ^[64] and
• All other documentation required to show eligibility for the employment-based immigrant visa classification sought, such as evidence of its ability to pay and evidence that the beneficiary meets any additional requirements specified on the ETA Form 9089.

An employer must offer full-time permanent employment to a beneficiary. If USCIS has a reasonable and articulable reason to believe that it is more likely than not that the petitioning employer is not offering a bona fide job offer, officers may request additional evidence, such as copies of the employer’s contracts with worksites or clients.^[65] An employer that cannot offer full-time permanent employment as a beneficiary’s actual employer is ineligible to petition for the beneficiary.^[66]

I. Adjudication

If an employer meets all requirements for Schedule A designation and the petition is approvable, USCIS retains the ETA Form 9089 with the petition. If an employer did not meet all requirements for Schedule A designation, or the petition is not approvable, USCIS retains the permanent labor certification application with the petition. The officer does not complete Section O of the permanent labor certification.

The petitioner retains the right to file an appeal of USCIS’ decision with the Administrative Appeals Office (AAO).^[67] In addition, an employer which cannot meet the requirements for Schedule A, Group II may then apply for a permanent labor certification from DOL using the basic permanent labor certification process.^[68] However, DOL does not consider applications for permanent labor certifications for Schedule A, Group I occupations under the basic permanent labor certification process.^[69]

Footnotes

[^ 1] See 20 CFR 656.15. See INA 212(a)(5) for the general labor certification standard.

[^ 2] See 20 CFR 656.16. 

[^ 3] See 20 CFR 656. For more information, see Chapter 2, Eligibility Requirements [6 USCIS-PM E.2].

[^ 4] See 20 CFR 656.10. See 20 CFR 656.15. These requirements are in addition to the general eligibility requirements for employment-based visa classification. See Chapter 2, Eligibility Requirements [6 USCIS-PM E.2].

[^ 5] The employer must also submit all other documentation required to show eligibility for the employment-based immigrant visa classification sought, such as evidence of its ability to pay, that the beneficiary and position qualify for the classification sought, and that the beneficiary meets the job requirements of the blanket labor certification.

[^ 6] See 20 CFR 656.5.

[^ 7] Before January 1, 2010, the State Workforce Agency (SWA) having jurisdiction over the area of intended employment processed prevailing wage determinations.

[^ 8] See the Office of Foreign Labor Certification (OFLC)’s Frequently Asked Questions and Answers webpage.

[^ 9] While the Schedule A regulations require that the employer obtain a prevailing wage determination that is valid at the time the employer files the petition, there is no requirement that the prevailing wage determination be obtained before the employer posts a notice of the position. In addition, there is no requirement that the wage on the posting notice must match the proffered wage, only that both must meet the prevailing wage.

[^ 10] See 20 CFR 656.10(d).

[^ 11] See 20 CFR 656.10(d)(1)(i).

[^ 12] See 20 CFR 656.10(d)(1)(ii).

[^ 13] See Period of Posting section below.

[^ 14] See 20 CFR 656.10(d)(1)(ii).

[^ 15] See generally OFLC’s Frequently Asked Questions and Answers webpage regarding the notice of filing.

[^ 16] See 20 CFR 656.10(d)(2).

[^ 17] See 20 CFR 656.15(b)(2). See Section H, Filing Requirements [6 USCIS-PM E.7(H)].

[^ 18] See 20 CFR 656.10(d)(1)(ii).

[^ 19] See Appendix: Sample Notice of Filing [6 USCIS-PM E.7, Appendices Tab].

[^ 20] See 20 CFR 656.10(d)(1)(ii).

[^ 21] See 20 CFR 656.10(d)(6). See 20 CFR 656.10(d)(3)(i).

[^ 22] See 69 FR 77325 (Dec. 27, 2004).

[^ 23] See 20 CFR 656.10(d)(3)(ii).

[^ 24] See 20 CFR 656.10(d)(3)(iii). Before June 1, 2008, there were two addresses depending on the location of the petitioning business: Atlanta or Chicago. On or after June 1, 2008, the Atlanta address must be listed on the posting notice. See DOL Employment and Training Administration (ETA) OFLC’s National Federal Processing Centers Contact webpage for the current mailing address for the appropriate Certifying Officer.

[^ 25] See 20 CFR 656.10(d)(3)(iv).

[^ 26] See Matter of Il Cortile Restaurant, 2010-PER-00683 (BALCA Oct. 12, 2010).

[^ 27] For all petitions filed after March 20, 2006 (or motions to reopen filed after March 20, 2006 to reopen a petition that was filed and denied after March 28, 2005), employers must comply with these posting requirements.

[^ 28] USCIS established a policy for officers to issue a Request for Evidence (RFE) to provide an employer with the opportunity to comply with the posting requirements if the petition was pending on March 20, 2006 (or was denied and a timely filed motion to reopen or reconsider was pending on March 20, 2006), and the employer timely posted a notice but not in the correct location(s) of intended employment as described above. If all posting requirements are met and the notice was posted the requisite 10 business days before the date of the RFE response, USCIS considers the notice of posting timely for adjudication purposes.

[^ 29] See 20 CFR 656.3.

[^ 30] See Section B, Eligibility for Schedule A Designation [6 USCIS-PM E.7(B)]. See OFLC’s Frequently Asked Questions and Answers webpage.

[^ 31] See 20 CFR 656.10(d)(1)(ii).

[^ 32] See 20 CFR 656.5(a)(3)(i).

[^ 33] See 20 CFR 656.5(a)(3)(i). DOL’s use of the term “professional” in 20 CFR 656.5(a)(3)(ii) has no bearing on the determination of whether a nurse qualifies as a professional or skilled worker under 8 CFR 204.5(l)(2).

[^ 34] See 20 CFR 656.5(a)(3)(ii). See Adjudication of H-1B Petitions for Nursing Occupations (PDF, 225.58 KB), PM-602-0104, issued February 18, 2015.

[^ 35] See 20 CFR 656.20(c)(10). See 20 CFR 656.3.

[^ 36] See Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). See Kazarian v. INS, 596 F.3d 1115, 1121 (9th Cir. 2010).

[^ 37] Even for Schedule A staffing agency scenarios, the applicable regulatory criteria do not include employment contracts as required evidence. See OFLC’s Frequently Asked Questions and Answers webpage, which explains that petitioners are not required to submit employment contracts. For the situation of nurse staffing agencies and “roving” employees (for example, foreign health care workers the petitioner will assign to work at third-party client worksites still to be determined as of the date of filing), DOL advised only that the petitioner should submit a prevailing wage determination for the headquarters location and posting notices at all of its clients’ worksites.

[^ 38] See Chapter 8, Documentation and Evidence [6 USCIS-PM E.8].

[^ 39] See Part F, Employment-Based Classifications [6 USCIS-PM F].

[^ 40] The requirements on the ETA Form 9089 should line up with those reflected on the Application for Prevailing Wage Determination (Form ETA-9141 (PDF)) and posting notice.

[^ 41] See 20 CFR 656.15(c)(2). The NCLEX-RN is administered by the National Council of State Boards of Nursing.

[^ 42] See 20 CFR 656.15(c)(1).

[^ 43] See 20 CFR 656.15(d)(1).

[^ 44] See Matter of Allied Concert Services, Inc., 88–INA–14 (BALCA 1988), which provides an example of how DOL previously evaluated the evidence for Schedule A Group II cases. 

[^ 45] See 20 CFR 656.15(d)(2).

[^ 46] See INA 203(b)(3).

[^ 47] See INA 203(b)(2).

[^ 48] Skilled worker positions require 2 years of training or experience, which can include relevant post-secondary education, such as an associate’s degree. See 8 CFR 204.5(l)(2) (definition of skilled worker).

[^ 49] O*NET Online is sponsored by DOL’s Employment and Training Administration, and developed by the National Center for O*NET Development.

[^ 50] Officers must differentiate “grandfathering” for purposes of obtaining licensure and the requirements for obtaining EB-2 classification. States that permit a person to obtain licensure with less than an advanced degree specify the date by which the person would have had to obtain his or her baccalaureate degree to be considered “grandfathered.” In order to be eligible for EB-2 preference classification, even a grandfathered noncitizen would have to demonstrate that he or she obtained the baccalaureate degree and has at least 5 years of progressive post-baccalaureate experience in the field.

[^ 51] See 8 CFR 204.5(k)(2) (definition of advanced degree).

[^ 52] Evidence of a degree is the official academic record. See 8 CFR 204.5(k)(3)(i)(A). See 8 CFR 204.5(l)(3)(ii)(C).

[^ 53] See INA 203(b)(2).

[^ 54] See 8 CFR 204.5(k)(2) (definition of exceptional ability).

[^ 55] For example, Schedule A, Group II designation requires an employer to file the petition and does not allow for the submission of comparable evidence in place of the regulatory criteria.

[^ 56] See 20 CFR 656.26. See 20 CFR 656.15(e). See 20 CFR 656.15(e). For information on appeals to the USCIS Administrative Appeals Office, see Section I, Adjudication [6 USCIS-PM E.7(I)].

[^ 57] See 20 CFR 656.17. See 20 CFR 656.15(f). See DOL ETA’s Foreign Labor Certification webpage. 

[^ 58] See 20 CFR 656.17. See Chapter 6, Permanent Labor Certification [6 USCIS-PM E.6] for further discussion of the basic permanent labor certification process.

[^ 59] On December 27, 2004, DOL published a final rule entitled Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System, which significantly restructured the permanent labor certification process. See 69 FR 77325 (Dec. 27, 2004). For information on Schedule A requirements before March 28, 2005, see prior 20 CFR 656.10 (PDF) and 20 CFR 656.22 (PDF).

[^ 60] See 20 CFR 656.10. See 20 CFR 656.15.

[^ 61] For information on filing fees, see the Form I-140 webpage.

[^ 62] If the petition was filed before January 1, 2010, then the prevailing wage determination would have been issued by the applicable State Workforce Agency (SWA).

[^ 63] For guidance on the appropriate posting location(s) for cases involving multiple worksites, see OFLC’s Frequently Asked Questions and Answers webpage.

[^ 64] See 20 CFR 656.5 and 20 CFR 656.15.

[^ 65] If the beneficiary will be assigned to other third-party worksites, that may impact the required contents of the notice of posting, the location of that notice, prevailing wage determination, ETA Form 9089, and the petition.

[^ 66] See 20 CFR 656.3. See Chapter 2, Eligibility Requirements [6 USCIS-PM E.2].

[^ 67] See 20 CFR 656.15(e) (the denial of a Schedule A case cannot be appealed through BALCA). DHS delegated the authority to adjudicate appeals to the AAO under the authority vested in the Secretary through the Homeland Security Act of 2002, Pub. L. 107-296 (PDF) (November 25, 2002). See Delegation Number 0150.1 (effective March 1, 2003). See 8 CFR 2.1. The AAO exercises appellate jurisdiction over matters described in 8 CFR 103.1(f)(3) (PDF) (in effect February 28, 2003), including decisions on petitions for an immigrant visa based on employment.

[^ 68] See 20 CFR 656.17. See Part F, Employment-Based Classifications [6 USCIS-PM F] for further discussion of that category.

[^ 69] See 20 CFR 656.15(f). See Section H, Filing Requirements [6 USCIS-PM E.7(H)].