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Options for Avoiding Labor Certification

OPTIONS FOR AVOIDING LABOR CERTIFICATION

Most foreign national employees are able to receive green cards only if their employers can satisfy the government that there are no minimally qualified US citizens or residents who are available, able or willing to fill the job offered to the prospective immigrant worker. Employers are able to meet this test of the labor market through a process known as the "Labor Certification Application" which is administered by the US Department of Labor (DOL). Once the Labor Certification application is approved by the DOL, the employer and foreign national employee continue the process toward the green card through applications filed directly with the Citizenship & Immigration Service (CIS). The Labor Certification procedure is expensive, time-consuming, and depends on the fortuity of the results of testing the labor market for qualified US workers. In exceptional cases, applicants and their US employers can avoid the Labor Certification process and file their cases directly with the Immigration Service. These groups are discussed below.

[Please note that this article does not address two specific categories of applicants who can also avoid the labor certification process: immigrant religious workers, including ministers, and immigrant entrepreneurs, which include individuals investing $500,000.00 or $1,000,000.00 (depending on the geographic area) in a US business which creates employment opportunities for US workers.]

  1. PRIORITY WORKERS

The most widely used category of applicants who are not bound to the labor certification process is designated as AEB-1 priority workers (for a detailed discussion of the various employment based green card categories and their requirements, see the article on "Employment Based Categories, Priority Dates and Quota Backlogs"). This category includes the following three subcategories:

  1. EXTRAORDINARY ABILITY IN SCIENCES, ARTS, EDUCATION, BUSINESS OR ATHLETICS

Individual applicants who possess "extraordinary ability in science, art, education, athletics or business are eligible for the EB-1 classification. This classification requires the submission of the following evidence in order to demonstrate that the applicant has received sustained national or international acclaim."

A one-time achievement award such as a major internationally-recognized award, e.g., a Nobel Prize OR documentation in at least three of the following ten groups which include:

  1. Lesser known international prizes or awards;
  2. Membership in associations in the field which require outstanding achievements;
  3. Published material about the applicant's work in the field;
  4. The applicant's participation as a judge of others' work in the field;
  5. Original contributions of significance in the field;
  6. Display of applicant's work at exhibitions;
  7. Authorship of scholarly articles in the field;
  8. Performance in a leading or critical role for organizations with distinguished reputation in the field;
  9. High salary or other remuneration relative to others in the field; and/or
  10. Commercial successes in the performing arts.

The EB-1 regulations also allow applicants to submit additional relevant documentation of their choice to supplement the above evidence and demonstrate they possess extraordinary ability in the field.

  1. OUTSTANDING PROFESSORS AND RESEARCHERS

The "Outstanding Professor or Researcher" category requires the applicant to be recognized internationally (national recognition is insufficient) as outstanding in a specific academic field, and to have at least three years of teaching or research experience. While the regulations appear to restrict the eligibility for this classification as much as that for the "extraordinary ability classification, the standard is not as quite as demanding as that for extraordinary ability applicants.

The regulations require an Outstanding Research or Professor petition to submit evidence of international recognition as shown by documentation in at least two of the following six groups:

  1. Receipt of major prizes or awards;
  2. Membership in associations requiring outstanding achievements;
  3. Published material about the applicant's work (e.g., the actual articles or a list of those articles which have cited the applicant's research);
  4. Proof of the applicant's participation as a judge of the work of others, either individually or on a panel (e.g., evidence that the applicant has acted as a peer reviewer, reviewing articles for publication);
  5. Original or scholarly research contributions to the field, as evidenced by independent advisory opinion letters discussing the internationally-recognized nature of the applicant's work; and/or
  6. Proof of the applicant's authorship of scholarly books or articles in the field.

The three years of required postdoctoral or post-Master's degree teaching/research experience may be established by letters from the applicant's advisor(s), the university personnel office, or the applicant's manager(s). These letters should confirm the dates of employment, and also describe the applicant's research or teaching duties.

All Outstanding Researcher/Professor cases also require the submission of an "Offer Letter" from the institution or corporation. If the employer is a US university or institution of higher learning, a letter offering the applicant a tenured, tenure- track or other permanent research position must be submitted. All other employers must provide a letter offering a permanent research position. Private institutional employers of outstanding researchers/scientists must also show that their organizations have made significant contributions in an academic field and that they have at least three employees in full-time research positions.

    1. MULTINATIONAL EXECUTIVE OR MANAGERIAL TRANSFER

    Employees who hold executive or managerial positions and have served in a similar capacity for a related company overseas may also avoid the labor certification process. The requirements for this classification are nearly identical to the requirements for L-1 executive or managerial nonimmigrant visa classification discussed elsewhere in this Handbook (for more information on the L-1 nonimmigrant classification, please see the articles below "Overview of the L-1 Process" and "Blanket L-1 Petition Requirements"). Prior L-1 status is not required. Whether the employee is now working within the US or for the company abroad makes no difference for EB-1 manager/executive eligibility. Both the petitioning multinational employer and the managerial or executive beneficiary must meet certain requirements.

    The employee applicant qualifies if:

      1. He or she was employed outside the US for one year (for employees in the US, the one year of employment abroad must have been within the three years prior to his or her entry to the US);
    2. Was or is employed abroad in a managerial or executive capacity with the same company, or a branch, affiliate, parent or subsidiary of the US company;
    3. Will be employed in the US in a managerial or executive capacity.

    "Executive capacity" means that the applicant has a position within an organization in which he or she primarily:

      1. Directs the management of the organization or a major component or function of the organization;
      2. Establishes the goals and policies of the organization, the component, or the function; and
      3. Exercises wide latitude in discretionary decision making, and receives only general supervision or direction from higher level executives, board of directors, or stockholders of the organization.

      "Managerial capacity" means the applicant has a position within an organization in which the applicant primarily:

        1. Manages the organization, or a department, subdivision, function, or component of the organization;
        2. Supervises and controls the work of other supervisory, professional, or managerial employees, OR manages an essential function within the organization, or a department or subdivision of the organization;
        3. Has the authority, if other employees are directly supervised, to hire and terminate or recommend hiring and termination decisions and other personnel actions (such as promotion and leave authorization); or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
        4. Exercises direction over the day-to-day operations of the activity or function for which the applicant has authority.

        Substantial and detailed evidence must be provided to the Immigration Service in support of an EB-1 case. Such evidence should generally include corporate organizational charts, indicating the employee's position in the company's hierarchy both in the US organization and the related business abroad. In addition, payroll records and applicable tax records are submitted to establish the employee's employment by the foreign company. A detailed employer letter will be needed to explain the managerial or executive nature of the applicant's duties in the overseas position and the prospective position for the employer in the US.

        "NATIONAL INTEREST WAIVER" - EXCEPTIONAL ABILITY IN BUSINESS, SCIENCE, ARTS OR EDUCATION OR PROFESSIONAL WITH AN ADVANCED DEGREE

        While most permanent resident applicants in the second employment based immigrant category (EB-2) must obtain labor certifications, there are two types of workers exempted from that process. They are foreign national applicants who have advanced (graduate) degrees (a Bachelor's degree and 5 years of progressive experience is accepted as equivalent to an advanced degree) or those employees who can show that they are of "Exceptional Ability" and whose work would be in the "National Interest."

        Employees lacking an advanced degree or its equivalence may qualify for the Exceptional Ability category, the applicant must provide evidence showing "exceptional ability in three of the following six categories:

        1. Degree or diploma in the field;
        2. Letters from present or former employers showing 10 years full time experience;
        3. Professional or occupational license or certificate;
        4. High salary or other remuneration commensurate with exceptional ability;
        5. Membership in professional associations;
        6. Recognition for achievements or significant contributions by peers; government entities or professional or arts organizations.

        The EB-2 regulations also allow applicants to submit additional relevant documentation where the above categories of evidence do not readily apply to their occupation. Once it is established that the applicant qualifies under one of these two definitions (as an Advanced Degree Professional or as an Alien of Exceptional Ability), then the applicant's continuing work in his or her field must be demonstrated to be in the "national interest." Nowhere in the immigration statute and regulations is the term "national interest defined or is guidance provided as to what the term means. The Immigration Service makes a determination regarding what is in the "national interest on a case-by-case basis.

        The use of the "national interest" category for the permanent resident process has greatly diminished following an Immigration Service appeals decision. This decision added burdensome additional requirements, including having to establish why the Labor Certification process is not appropriate. Following this decision, a petition for a "national interest" waiver of the Labor Certification is likely to be approved only when:

      2. the petition relates to employment in an area of "substantial intrinsic merit;"
    2. the employee's work will have an effect that is "national in scope;"
  2. the petition is able to show why the applicant's contribution is essential and/or unique in relation to the work; and
  3. the petition is able to establish why obtaining a labor certification on behalf of the applicant might prejudice the project in which the applicant is working.

An employee who is undertaking significant research involving medicine or the environment which impacts a large segment of the US population will likely satisfy the first two of the above four conditions. Supporting evidence for this classification ought to include: published material about the applicant (or an organization or group with which the applicant works); letters of support and recommendation from recognized experts in the field or government officials; evidence of significant awards and/or patents in the relevant area of research; and published material illuminating the immense and urgent scope of the problem, issue or need.

SCHEDULE "A" OCCUPATIONS

The DOL maintains a schedule of occupations, called "Schedule 'A'," which have been determined to be in permanent short supply and therefore do not require the labor market tests of the Labor Certification process. Schedule "A" consists of two groups: Group I, including licensed physical therapists and professional (registered) nurses; and Group II, including foreign nationals with exceptional ability in the sciences and arts (including aliens in the performing arts).

PHYSICAL THERAPISTS AND NURSES

Of the occupations listed on Schedule "A" the most commonly used are those for physical therapists and professional (registered) nurses. A few years ago professional nurses and physical therapists were able to take advantage of two exemptions from the ordinary conditions of other employment based immigrants. They could not only bypass the Labor Certification as Schedule A workers, but they avoided visa priority backlogs through a law that made available up to 50,000 additional employment based immigrant visa numbers. Regrettably, the additional visas did not last terribly long and the immigrant visa number backlogs for nurses have returned.

The employer in a Schedule "A" case files the petition for permanent residence directly with the Immigration Service. While an approved labor certification application is not filed with the petition, the actual labor certification forms are submitted to the Immigration Service. Nurses and physical therapists must also establish that they hold a valid state license or that their licensing is imminent. Registered nurses must obtain certification by the Commission on Graduates of Foreign Nursing Schools (CGFNS); have full, unrestricted licenses to practice nursing in the states of intended employment; or must have passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN).

Please note that Schedule "A" pre-certification applies solely to "professional nurses"—those who make clinical judgments concerning the observation, care, and counsel of patients requiring medical care, and who administer medicines and treatments prescribed by the physician. Certified nurse assistants, licensed vocation nurses, practical nurses, and nurse aides are not included on Schedule "A" and are not professional nurses.

EXCEPTIONAL ABILITY IN SCIENCE OR THE ARTS (WITH JOB OFFER)

An employer may also sponsor an employee in either the EB-2 or EB-3 category (professional or skilled worker) by requesting an exemption from the labor certification requirement based on the employee's exceptional ability in the sciences or arts.

The evidence which must be submitted includes the following:

  1. Documentary evidence demonstrating widespread acclaim and international recognition by recognized experts;
  2. Documentation showing that applicant's last year of work and proposed future work require exceptional ability; and
  3. Evidence from at least two of the following seven categories:
    1. Receipt of internationally recognized prizes or awards;
    2. Membership in international organizations requiring outstanding achievement for membership;
    3. Published material about the applicant's work;
    4. Participation as a judge of others' work;
    5. Original scientific or scholarly research;
    6. Authorship of published scientific or scholarly articles; and
    7. Display of work at artistic exhibitions.
  4. While similar to the requirements for Outstanding Researchers and Professors in the EB-1 category and those for Aliens of Extraordinary Ability in the EB-2 category discussed above, the Exceptional Ability classification has a somewhat lower evidentiary burden than these other classifications. This category may be a useful alternative when an applicant appears unlikely to meet the Outstanding Researcher or Extraordinary Ability standards.