Under the current immigration framework, the overwhelming majority of employment-based Green Cards require proof that hiring the sponsored immigrant will not negatively impact the US work force. In simplest terms this means most employment-based Green Cards require an approved PERM ETA 9089, also known as a Labor Certification as the first step of the Green Card process. One of the negative aspects of the Labor Certification can take months if not sometimes years for approval, thereby delaying not only the immigrant’s journey to the United States but more so delays US employers opportunity for growth.
However, for certain types of occupations Congress and the Department of Labor have identified there are not enough U.S. workers who are able, willing, qualified, and available to fill the positions and meet market demands. For these occupations, the sponsoring employer is exempt from the lengthy Labor Certification process. While a number of overarching immigration filing requirements are maintained, for sponsoring employers the Schedule-A Green Card process is one of the most straight-forward of filings within the employment-based immigration universe.
What positions qualify for Schedule-A designation?
Under the Schedule A Group I category, Registered Nurses and Physical Therapists are the two most heavily utilized occupations.
Typically, USCIS will consider a Registered Nurse suitable for Schedule A designation if they have: 1) a full nursing licensure in the state of intended employment, 2) National Council Licensure Examination Certification (NCLEX) Certificate of Passing, or 3) Commission on Graduates of Foreign Nursing Schools Certificate (GCFNS).
For Physical Therapists, the sponsored employee must have a permanent license to practice in the state of intended employment. 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.
These are of course the bare minimum requirements for Schedule A cases. =
Are Schedule A Cases suitable for EB-2 or EB-3?
Speaking in the most technical terms, categories EB-2 and EB-3 are both suitable for Schedule A cases. By and large, suitability for EB-2 or EB-3 is not dependent upon the positions title but more so the employer’s education and experience requirements for a suitable candidate.
For instance, a Nursing candidate with “only” an Associate’s degree and necessary licensure(s) is almost always going to be an EB-3 candidate. Conversely, a Nursing candidate with a Master’s degree or perhaps an Bachelor’s degree and enough relevant experience would be suitable for EB-2 candidature. For Physical Therapy candidates, due to state-level requirements on the position, most if not all PTs require a Master’s degree or above to qualify. This isn’t always the case, but is a good rule with some exceptions.
In reality, most Registered Nurse cases will be filed under the either EB-3 Professional or Skilled Worker category whereas most Physical Therapist petitions will be filed under the EB-2 Professional with Advanced Degree Category.
What is the Schedule A process?
Once we’ve identified the education/experience requirements of the position and the proposed duties of the position, we first file for a Prevailing Wage Determination (PWD) with the Department of Labor which identifies the average wage for the position in the geographic locality of intended employment. For instance, if we’re filing for a Registered Nurse in Houston, TX, the PWD would identify the average wage for Registered Nurse in Houston, TX. The sponsoring employer must prove they can pay at or above this wage rate for approval. At the time of writing, the current PWD processing times are about 4-7 months.
After obtaining the Prevailing Wage Determination, the sponsoring employer must then advertise the offered position to its current employees. The purpose of this is to provide some level of protection to US workers, particularly those currently employed by the sponsoring employer. The “advertisement” is known as a Posting Notice or Notice of Filing.
This Posting Notice is typically placed at the employer’s worksite(s) and identifies the open job opportunity and education/experience requirements to qualify for that position. The sponsoring employer will post this notice for ten consecutive business days so that current US employees have the opportunity to apply for the position. After that tenth business day, the sponsoring employer is required to wait at least 30 days before they can then file the immigration petition for the sponsored immigration.
After obtaining the PWD and placing the Posting Notice for the required amount of time, the sponsoring employer will then file the Form I-140, Petition for Alien Worker. On the Form I-140, there is a specific spot to notify USCIS that it is a Schedule A designation filing.
Typically, the Schedule A I-140 petition will contain the following:
- Form I-140, signed by Petitioner with appropriate selection for Schedule A designation;
- Approved and Valid Prevailing Wage Determination (“PWD”);
- Posting Notice with dates of posting;
- Any education, experience, or licensure as required by the PWD (Nursing License/NCLEX/CGFNS; PT Licensure); and
- Proof of the Petitioning employer’s ability to pay the wage set out in the PWD.
For more information, or for a detailed conversation regarding your specific nursing or physical therapist requirements, the Schedule A filing process, or other potential issues arising during your Permanent Residency Process or the immigration processes of your employees, please schedule a time to speak here.
By : Ryan A. Wilck, Partner and Attorney at Law
Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.
We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.