USCIS Incorporates Department of Labor’s Definition of “Science or Art” Into Its Policy Manual
Categories: Attorneys , Citizenship , EB-2 , EB-3 , Law Firm , Lawyers
The U.S. Citizenship and Immigration Services (USCIS) issued a policy guidance in their policy manual announcing the adoption of the U.S. Department of Labor (DOL)’s definition of “science or art” into its own policy manual. This clarification specifically impacts adjudication of EB-2 & EB-3 visa preference categories for Schedule A Group II cases.
Presently, the DOL has classified two groups of professions under Schedule A to bypass the rigorous labor certification process and review. They are, (1) registered nurses and physical therapists (Group I), and (2) individuals with exceptional ability in the sciences and arts (excluding performing arts) and individuals with exceptional ability in performing arts (Group II). This update impacts specifically the Group II beneficiaries.
In the realm of employment-based 2nd and 3rd preference (EB-2 and EB-3) petitions, employers are required to obtain a labor certification from the DOL before filing Form I-140, Immigrant Petition for Alien Workers. However, certain categories that are classified as Schedule A occupations are not required to go through DOL review. This is because the DOL has already determined a shortage of qualified U.S. workers for this category.
As defined by the DOL, “science and art” encompasses “any field of knowledge or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge or skill.”
While understanding the importance of the DOL regulations related to Schedule A occupations, USCIS, with its policy update, is incorporating the DOL’s definition of “science and art” into its own policy manual. It is important to note that this update does not alter any existing policy. USCIS says it will continue to critically review the quality and quantity of the submitted evidence to make sure that only the most qualified under Schedule A, Group II are granted bypass of the DOL review and process. This demonstrates USCIS’ desire to maintain uniformity with the Department of Labor’s policy.
This policy update potentially opens up the Schedule A, Group II designation to cover any employee working in the field for which colleges and universities annually offer specialized courses leading to a degree in the knowledge or skill. If an applicant files Schedule II designation, and USCIS approves the case, then his or her labor certification process can be waived. Additionally, this update can help applicants who possess highly exceptional ability in the sciences or arts to have another option to achieve permanent resident status in the United States. As this matter is subject to further developments, we encourage readers to check our site regularly on this and other topics involving immigration law.