My friend Morgan Smith wrote this note about the Rio Grande in July 2024. Learn more about Morgan here , here and here .
J.A.M. v. USA "The Court holds that Oscar is entitled to a much lower, but still notable award of $175,000 because he was somewhat older at the time of the incident, was detained for about half...
Path2Papers, July 17, 2024 " What are the policy changes the Biden administration is implementing regarding temporary work visas? On June 18, 2024, the Biden administration announced a policy...
DOJ, July 18, 2024 "The Justice Department has filed a lawsuit against Southwest Key Programs Inc. (Southwest Key), a Texas-based nonprofit that provides housing to unaccompanied children who are...
Jeanne Kuang, CalMatters, July 18, 2024 "Even with all the industries where Californians went on strike during last year’s “hot labor summer,” some of the most active sites of...
Cyrus D. Mehta and Kaitlyn Box, Apr. 23, 2024
"On April 10, 2024, USCIS issued a policy alert clarifying the term “sciences or arts” for Schedule A, Group II occupations. Schedule A occupations are those for which the Department of Labor (DOL) has recognized that a shortage of U.S. workers exists. Group I occupations consist of physical therapists and professional nurses, while Group II occupations include “immigrants of exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts”. Schedule A occupations are “pre-certified” by the DOL, so employers are not required to conduct a lengthy and onerous test of the labor market or file an ETA-9089 with the DOL.
In its recent policy update, USCIS stated that “DOL, when designating Schedule A, Group II, defines science or art as 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.” Previously, these terms were not defined in the USCIS Policy Manual. This update could open up the Schedule A, Group II to encompass any field for which U.S. colleges and universities commonly offer a degree program. Noncitizens whose professions were not clearly a “science” or “art”, such as lawyers, businesspeople, and teachers, may now be able to avail of the Schedule A, Group II program. This broadening of the definitions of “science” and “art” follows the Biden Administration’s Executive Order on Artificial Intelligence to expand the availability of highly-skilled foreign nationals in the Science, Technology, Engineering, and Mathematics (STEM) and AI fields, as well as additional occupations across the economy, for which there is an insufficient number of ready, willing, able, and qualified United States workers.
However, the significance of this change should not be overstated as all the existing requirements for Schedule A, Group II designation still apply. For noncitizens in the sciences or arts, even under the expanded definition, this means that they must demonstrate exceptional ability in their field. Employers must provide a full-time offer of employment, and offer the beneficiary at least the prevailing wage. The employer must also provide notice of the position to a bargaining representative, or its employees. The specific requirements that USCIS outlines for each Schedule A occupation must also be met. In order to demonstrate “exceptional ability in the sciences or arts”, a beneficiary’s prospective employer must “submit documentary evidence showing the widespread acclaim and international recognition accorded to the beneficiary by recognized experts in the beneficiary’s field”. The beneficiary’s employment during the past year, as well as the position offered in the U.S., must also require exceptional ability.
Additionally, the beneficiary must meet at least two of the following seven criteria laid out in 20 CFR 656.15(d)(1):
It is also important ensure that the “exceptional ability” criteria for Schedule A, Group II are not conflated with the criteria for an employment-based, second preference visa based on exceptional ability. In order to qualify for Employment-Based Second Preference (EB-2) classification, a noncitizen must hold an advanced degree or equivalent, or “be able to show exceptional ability in the sciences, arts, or business”. Exceptional ability for EB-2 purposes is defined as “degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business”. Beneficiaries must also demonstrate that they meet at least three of the six criteria outlined in 8 CFR 204.5(k)(3)(ii):
Other comparable evidence of eligibility is also acceptable.
Schedule A, Group II, provides an alternative basis for an employer to sponsor a noncitizen employee for permanent residence without going through the lengthy labor certification process in addition to the person extraordinary ability under the Employment-Based First Preference (EB-1) or the National Interest Waiver under EB-2."