What Is a Science or Art? Now We Know.

There are many routes available to immigrate to the U.S., particularly for people with exceptional ability in the sciences or arts. United States Citizenship and Immigration Services (USCIS) recently clarified one such route for these extraordinary scientists and artists by adopting a definition of “science or art” into its regulations allowing for immigration without Labor Certification from the Department of Labor. Learn about this definition and the important pathway below, and contact Queens Immigration Law if you are an employer or foreign professional needing help from a skilled and experienced U.S. immigration lawyer.

Employment-Based Visas for Lawful Permanent Residence

First, let’s look at a couple of employment-based routes to immigration and the process of obtaining a visa. USCIS maintains five different preference categories of employment-based visas, labeled EB-1 through EB-5. These visas provide a Green Card and lawful permanent residence, i.e., the right to live and work permanently in the U.S., for eligible individuals. Workers eligible for these visas include:

• EB-1 visas for priority workers, such as workers with extraordinary abilities in the arts, sciences, education, business, or athletics; outstanding professors and researchers; and certain multinational managers or executives.

• EB-2 visas for professionals with advanced degrees or exceptional ability in the sciences, arts or business whose presence in the U.S. will substantially benefit the country’s economy, culture, education, or welfare.

• EB-3 visas for skilled workers, professionals, and unskilled workers who meet the education and job experience requirements of the visa.

• EB-4 visas for certain special immigrants, including religious workers.

• EB-5 visas for immigrant investors prepared to make a substantial investment (a million dollars in most cases) that will create or preserve ten or more full-time jobs for U.S. workers.

Employment-Based Visas and PERM Labor Certification

As you can see, scientists and artists might qualify for a visa in the EB-1, EB-2 or EB-3 category. For EB-2 and EB-3 visas, however, sponsoring employers must first obtain labor certification from the Department of Labor (DOL) known as PERM (for Program Electronic Review Management). Through this process, DOL verifies that there aren’t any qualified workers in the U.S. who are available to fill the offered position. PERM labor certification also verifies that employing the foreign worker won’t adversely affect the salaries or working conditions of any U.S. workers similarly employed.

Getting PERM labor certification can be a laborious and time-consuming process, requiring employers to get a prevailing wage determination from DOL, conduct a domestic recruitment campaign, draft job descriptions, and file forms with the DOL Employment and Training Administration.

However, for certain occupations, DOL has already determined that open positions exist without enough able, willing and qualified U.S. workers to fill them. These predetermined jobs are known as Schedule A occupations and currently contain two groups. Group I includes registered nurses and physical therapists, while Group II includes individuals with exceptional ability in the sciences or arts. The importance of Schedule A occupations is that they do not require employers to go through the DOL first to obtain labor certification; instead, they can submit their labor certification straight to USCIS, saving time, money and headaches.

Just last month, USCIS aligned its policy with the DOL regarding Schedule A, Group II occupations by adding the DOL’s definition of “science or art” to the USCIS Policy Manual. For the purposes of adjudicating petitions in this group, “science or art” is now defined by USCIS the same way it is defined by the DOL: “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.” This guidance was made effective immediately upon publication on April 10 and can be found in Volume 6 of the USCIS Policy Manual.

In New York, Contact Queens Immigration Law for Help With Employment-Based Visas and Other Immigration Legal Matters

In updating its Policy Manual to reflect the new definition, USCIS also included an additional update that explains that USCIC reviews both the quantity and the quality of evidence provided when adjudicating these petitions or any others. This update stresses and reinforces the need to work with a qualified and experienced immigration lawyer who can help you put together a complete and compelling petition sufficient to persuade USCIS that the visa should be granted.

For help with employment-based visas, H-1B visas, or other immigration legal matters in New York, call Queens Immigration Law at 718-793-7800 or 800-339-0535. We provide quality advice, technical assistance, and professional representation in all aspects of U.S. immigration law.