Immigration Opportunities for Exceptional Individuals

Author C. Matthew Schulz

To bring the best and brightest to the United States, there are immigrant visas for individuals of exceptional ability.

In General

The employment-based second and third preference immigrant visas (EB2 and EB3) generally require an alien employment certification from the US Department of Labor (D)OL).  That can be a very slow and expensive process that does not prioritize exceptional ability individuals.

DOL and the US Citizenship and Immigration Services agency (USCIS) recognized this and created two alternative solutions:

• DOL’s Schedule A; and
• USCIS EB2 exceptional ability.

Schedule A

The employment must be in one of the occupations categorized as a Schedule A occupation:

• Group I – physical therapists and professional nurses; and
• Group II – immigrants of exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts.

Group I Physical Therapists

Physical therapists apply 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). 

The physical therapist must hold either:

• a permanent license to practice in the state of intended employment; or
• a letter or statement signed by an authorized state physical therapy licensing official in the state of intended employment indicating that the immigrant is qualified to take the written licensing examination for physical therapists. 

Group I Professional Nurses

Professional nurses apply 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 the activities for the promotion of health and prevention of illness in others. Whether classified by USCIS as EB2 or EB3 generally eligible depends on whether the position requires, and the beneficiary has, an advanced degree (e.g., above baccalaureate level).

The nurse must hold:

• 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 the immigrant visa petition. 

Exceptional Ability in Sciences or Arts

Individuals of exceptional ability in the sciences or arts must show their widespread acclaim and international recognition acknowledged by recognized experts in the field. DOL defines a 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.  Their work in that field during the past year and the intended work in the US must require exceptional ability. 

In addition, at least two of the following must be proved:

• Receipt of internationally recognized prizes or awards for excellence in the field;
• Membership in international associations, in the field, which require outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields;
• Published material in professional publications about the individual and their work in the field;
• Participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization;
• Original scientific or scholarly research contributions of major significance in the field;
• Authorship of published scientific or scholarly articles in the field, in international professional journals or professional journals with an international circulation; and
• Display of their work, in the field, at artistic exhibitions in more than one country.

Exceptional Ability in the Performing Arts

Individuals of exceptional ability in the performing arts must show work experience during the past 12 months and the intended work in the US require exceptional ability. 

In addition, there must be submit sufficient documentation to prove this exceptional ability, such as:

• Current widespread acclaim and international recognition, and receipt of internationally recognized prizes or awards for excellence;
• Published material by or about the individual, such as critical reviews or articles in major newspapers, periodicals, or trade journals;
• Earnings commensurate with the claimed level of ability;
• Playbills and star billings;
• Outstanding reputation of theaters, concert halls, night clubs, and other establishments in which the artist appeared or is scheduled to appear; or
• Outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the artist has performed during the past year in a leading or starring capacity. 

USCIS Exceptional Ability in Sciences, Arts or Business

A separate and distinct path from the DOL’s Schedule A is the USCIS EB2 immigrant visa classification for individuals who can show:

• Exceptional ability in the sciences, arts, or business;
• Their immigration will substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future; and
• Their services are sought by an employer in the United States.

Exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. This standard is lower than the standard for the EB1A and O1 extraordinary ability classification.

Regulatory Criteria

A least three of the following must be proved:

• Official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
• Letter(s) from current or former employer(s) showing at least 10 years of full-time experience in the occupation for the US job offered;
• A license to practice the profession or certification for a particular profession or occupation;
• Salary or other remuneration for services that demonstrates exceptional ability relative to others working in the field;
• Membership in professional associations; and
• Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. 

For More Information

Please contact the author for more information.