In our blog “Effectively Navigating the Complex Maze of the PERM Process,” dated September 02, 2022, we stated that the employers can submit an I-140 petition for a professional nurse, physical therapist, and those with exceptional ability (Schedule A Occupations) without first obtaining a certified ETA Form 9089. For Schedule, A occupations, DOL has pre-certified the labor certification, so the petitioners do not need to obtain a labor certification from DOL. The DOL has predetermined there are not sufficient U.S. workers who are able, willing, qualified, and available pursuant to regulation. Accordingly, EB-2 and EB-3 Schedule A petitioners file Form I-140, Immigrant Petition for Alien Workers, and uncertified labor certification directly to USCIS. 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.

1. What is the eligibility for Schedule A Designation?

• The employer must offer full-time permanent employment to the beneficiary.
• The employment must be in one of the occupations categorized as a Schedule A occupation, which are professional nurses, physical therapists, and those with exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts.
• The employer must offer the beneficiary at least the prevailing wage.
• The employer must provide notice of the position(s) it seeks to fill to the employer's bargaining representative, if applicable, or its employees.
• The beneficiary must meet the specific USCIS eligibility requirements.

2. Prevailing Wage Determinations (PWD) and Notices of Filing (PERM Step 1):

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. 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. 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 using the FLAG system. 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. An employer must file a petition within the validity period in order to use the prevailing wage rate provided by the NPWC.

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, to the employer's bargaining representative. Alternatively, if there is no such representative, then the employer must provide notice to its employees. Such notice must be posted for at least 10 consecutive business days in a clearly visible location at the facility or location of employment. The notice must have been posted between 30 days and 180 days before the employer filed the petition. 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. 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. The rate of pay must meet or exceed the prevailing wage at the time of posting. 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. The notice must also provide the address of the appropriate Certifying Officer. 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. 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.

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.

Applications Filed by Private Households

In the case of a private household, a 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.

Evidence of Compliance

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

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 the notice of the application in accordance with the procedures used for similar positions within the employer's organization.

3. USCIS Eligibility and Filing Requirements:

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 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. 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. The classification for which the nurse is eligible depends on whether the position requires, and the beneficiary has an advanced degree. For 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.

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). For 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.

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. The terms of the job offer are derived from the petition and ETA Form 9089. 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. The record should also contain evidence of the beneficiary's qualifications for the classification and any special requirements required by the job offer on the ETA Form 9089. Such evidence should illustrate that it is more likely than not that there is a bona fide job offer.

An employer may seek to classify the beneficiary as a skilled worker or professional (employment-based 3rd preference or EB-3 category). Occasionally, an employer may seek to classify the position as an advanced degree professional (employment-based 2nd preference or EB-2 category).

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. 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 requirement may even be an advanced degree. Those occupations may be properly considered under the advanced degree classification.

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.

The 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 possesses 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. 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), 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 a 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.

For all Schedule A occupations, an employer must apply for a 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. DOL does not certify any occupation that is a Schedule A, Group I occupation under the basic permanent labor certification process.

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