An applicant for Lawful Permanent Resident status who possesses outstanding qualifications and is offered a position commensurate with those qualifications, may seek to avoid the normal Labor Certification procedure by having a prospective employer file an Immigrant Visa Petition requesting classification of the Alien as an Individual of “Exceptional Ability” together with a request for “Blanket Labor Certification” under Schedule A, Group II of the Department of Labor regulations. To qualify in this category, an applicant must submit a petition that establishes the following:
- That the applicant is offered a permanent position and a competitive salary for that position;
- That this position requires an individual of “exceptional ability” in the alien’s field of expertise;
- That the applicant has been working in this field for at least one year prior to filing the application;
- That the applicant intends to continue to work in this field in the United States;
- That the applicant has achieved widespread acclaim and international recognition for exceptional achievement in his or her field of endeavor.
As defined by U.S. Citizenship and Immigration Services, evidence of exceptional ability and achievement must include at least two of the following:
- proof that the applicant has received internationally recognized prizes or awards for excellence in his field.
- proof of membership in international associations which require outstanding achievement for membership.
- published material about the applicant in professional publications.
- proof of the applicant’s participation on a panel, or individually, as a judge of the work of others.
- proof of the applicant’s original scholarly or scientific research of major significance.
- proof of authorship of published scientific or scholarly articles in international journals.
Importantly, a Schedule A, Group II petition does not require the following:
- Testing the labor market by advertising this position outside the applicant’s workplace;
- Submitting a Labor Certification form to the Department of Labor for approval before filing with U.S. Citizenship and Immigration Services.
However, in considering this option, it is important to remember that there are several requirements unique to filing a Schedule A, Group II Petition:
- The Payment Requirement: as specified by the Department of Labor, the employer must—at a minimum—pay for the portion of the legal costs associated with preparing the Labor Certification form.
- The Prevailing Wage Requirement: the employer must obtain a determination from the Department of Labor demonstrating that a competitive salary is being offered for the position.
- The Posting Requirement: notice must be posted on the premises of the employer and in any relevant in-house media services for a specific period of time before the Petition can be filed with the Immigration Service. Alternatively, the posting should be given to a company bargaining representative, if appropriate. This posting will contain specific information about the applicant’s salary.
Please note that approval of the petition will qualify the Applicant for classification in the E2 preference category under the quota system. The category is current for most Applicants but is backlogged for natives of mainland China and India.