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Department of Labor Precertification

Written by Henry J. Chang

It has been previously determined that there are not sufficient United States workers who are able, willing, qualified, and available for the certain categories listed on Schedule A (which appears at 20 CFR §656.10) and that the wages and working conditions of United States workers similarly employed will not be adversely affected by the employment of aliens in Schedule A occupations. A discussion of these "precertified" categories appears below.

Precertification of Certain Professions Under Schedule A, Group I

Group I of Schedule A currently includes the following occupations:

  1. persons who will be employed as physical therapists, and who possess all the qualifications necessary to take the physical therapist licensing examination in the State in which they propose to practice physical therapy; and

  2. aliens who will be employed as professional nurses; and (i) who have passed the Commission on Graduates of Foreign Nursing Schools (CGFNS) Examination; or (ii) who hold a full and unrestricted license to practice professional nursing in the State of intended employment.

The term "physical therapist'' is defined to mean 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 surgeon). The term "professional nurses'' means persons who apply the art and science of nursing, which reflects comprehension of principles derived from the physical, biological, and behavioral sciences.

Professional nursing generally includes the making of clinical judgments concerning the observation, care, and counsel of persons requiring nursing care; administering of medicines and treatments prescribed by the physician or dentist; and the participation in activities for the promotion of health and the 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. This definition includes only those occupations within Occupational Group No. 075 of the Dictionary of Occupational Titles (4th ed.).

Although the Department of Labor regulations do not require registered nurses to have passed the CGFNS examination if they hold a full and unrestricted license to practice professional nursing in the State of intended employment, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 now renders foreign health care workers (i.e. registered nurses) excludable under the new INA 212(a)(5)(C) unless they have passed the CGFNS examination. Physical therapists may also fall within the meaning of "foreign health care worker" and also require certification by an entity similar to the CGFNS. However, no such entity has been designated for physical therapists. The INS will apparently grant waivers of INA 212(a)(5)(C) until an appropriate certification body has been approved for each particular health care occupation.

Precertification of Aliens of Exceptional Ability Under Schedule A, Group II

Group II of Schedule A includes the following persons:

aliens (except for aliens in the performing arts) of exceptional ability in the sciences or arts, including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States. For purposes of this group, the term "science or art'' means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. An alien, however, need not have studied at a college or university in order to qualify for the Group II occupation.

The one-year experience requirement applies to aliens of exceptional ability in the sciences or arts, as well as to college or university teachers. "Exceptional ability'' must be outstanding and unique and must be far greater than the normal professional standing of a scientist or artist who has received a college or university education and is also widely recognized as unique. Teachers in this category must be regarded as outstanding in their field of specialization, and be expected to impart specialized knowledge not otherwise available at the college or university to which they are destined.

The use of the term "exceptional ability" in immigration law is somewhat confusing since it is applied differently when used in the context of the employment-based second preference and than when it is used in the context of Schedule A, Group II precertification. To qualify as an alien of exceptional ability under Schedule A, Group II of the Department of Labor regulations, the individual must submit:

  1. evidence which demonstrates widespread acclaim and international recognition accorded the alien by recognized experts in their field;

  2. documentation showing that the alien's work in that field during the past year did, and the alien's intended work in the United States will, require exceptional ability; and

  3. documentation concerning the alien from at least two of the following seven groups:

    1. Documentation of the alien's receipt of internationally recognized prizes or awards for excellence in the field for which certification is sought.

    2. Documentation of the alien's membership in international associations, in the field for which certification is sought, which require outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields.

    3. Published material in professional publications about the alien, relating to the alien's work in the field for which certification is sought, which shall include the title, date, and author of such published material.

    4. Evidence of the alien'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 to that for which certification is sought.

    5. Evidence of the alien's original scientific or scholarly research contributions of major significance in the field for which certification is sought.

    6. Evidence of the alien's authorship of published scientific or scholarly articles in the field for which certification is sought, in international professional journals or professional journals with an international circulation.

    7. Evidence of the display of the alien's work, in the field for which certification is sought, at artistic exhibitions in more than one country.

Despite the similar terminology, qualifying as an alien of "exceptional ability" under the employment-based second preference is easier than qualifying as an alien of exceptional ability under Schedule A, Group II of the Department of Labor regulations. Schedule A, Group II precertification may actually be more difficult to obtain than the employment-based first preference category for aliens of "extraordinary ability". Although the "extraordinary ability" preference category requires three types of documentation, it may actually be more flexible than Schedule A, Group II. For example, the "extraordinary ability" category permits:

  1. the use of nationally recognized as well as the internationally recognized prizes required for Schedule A, Group II;

  2. membership in associations requiring outstanding achievement as judged by national as well as the international experts required for Schedule A, Group II; and

  3. publications in professional journals or trade and other major media in addition to the international journals required for Schedule A, Group II.

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