(a) Filing application. An employer must apply for a labor
certification for
[[Page 691]]
a Schedule A occupation by filing an application in duplicate with the
appropriate DHS office, and not with an ETA application processing
center.
(b) General documentation requirements. A Schedule A application
must include:
(1) An Application for Permanent Employment Certification form,
which includes a prevailing wage determination in accordance with Sec.
656.40 and Sec. 656.41.
(2) Evidence that notice of filing the Application for Permanent
Employment Certification was provided to the bargaining representative
or the employer's employees as prescribed in Sec. 656.10(d).
(c) Group I documentation. An employer seeking labor certification
under Group I of Schedule A must file with DHS, as part of its labor
certification application, documentary evidence of the following:
(1) An employer seeking Schedule A labor certification for an alien
to be employed as a physical therapist (Sec. 656.5(a)(1)) must file as
part of its labor certification application a letter or statement,
signed by an authorized state physical therapy licensing official in the
state of intended employment, stating the alien is qualified to take
that state's written licensing examination for physical therapists.
Application for certification of permanent employment as a physical
therapist may be made only under this Sec. 656.15 and not under Sec.
656.17.
(2) An employer seeking a Schedule A labor certification for an
alien to be employed as a professional nurse (Sec. 656.5(a)(2)) must
file as part of its labor certification application documentation that
the alien has received a Certificate from the Commission on Graduates of
Foreign Nursing Schools (CGFNS); that the alien holds a full and
unrestricted (permanent) license to practice nursing in the state of
intended employment; or that the alien has passed the National Council
Licensure Examination for Registered Nurses (NCLEX-RN). Application for
certification of employment as a professional nurse may be made only
under this Sec. 656.15(c) and not under Sec. 656.17.
(d) Group II documentation. An employer seeking a Schedule A labor
certification under Group II of Schedule A must file with DHS, as part
of its labor certification application, documentary evidence of the
following:
(1) An employer seeking labor certification on behalf of an alien to
be employed as an alien of exceptional ability in the sciences or arts
(excluding those in the performing arts) must file documentary evidence
showing the widespread acclaim and international recognition accorded
the alien by recognized experts in the alien's field; and documentation
showing the alien's work in that field during the past year did, and the
alien's intended work in the United States will, require exceptional
ability. In addition, the employer must file documentation about the
alien from at least two of the following seven groups:
(i) Documentation of the alien's receipt of internationally
recognized prizes or awards for excellence in the field for which
certification is sought;
(ii) Documentation of the alien's membership in international
associations, in the field for which certification is sought, which
require outstanding achievement of their members, as judged by
recognized international experts in their disciplines or fields;
(iii) Published material in professional publications about the
alien, about the alien's work in the field for which certification is
sought, which shall include the title, date, and author of such
published material;
(iv) Evidence of the alien's participation on a panel, or
individually, as a judge of the work of others in the same or in an
allied field of specialization to that for which certification is
sought;
(v) Evidence of the alien's original scientific or scholarly
research contributions of major significance in the field for which
certification is sought;
(vi) Evidence of the alien's authorship of published scientific or
scholarly articles in the field for which certification is sought, in
international professional journals or professional journals with an
international circulation;
(vii) Evidence of the display of the alien's work, in the field for
which certification is sought, at artistic exhibitions in more than one
country.
[[Page 692]]
(2) An employer seeking labor certification on behalf of an alien of
exceptional ability in the performing arts must file documentary
evidence that the alien's work experience during the past twelve months
did require, and the alien's intended work in the United States will
require, exceptional ability; and must submit documentation to show this
exceptional ability, such as:
(i) Documentation attesting to the current widespread acclaim and
international recognition accorded to the alien, and receipt of
internationally recognized prizes or awards for excellence;
(ii) Published material by or about the alien, such as critical
reviews or articles in major newspapers, periodicals, and/or trade
journals (the title, date, and author of such material shall be
indicated);
(iii) Documentary evidence of earnings commensurate with the claimed
level of ability;
(iv) Playbills and star billings;
(v) Documents attesting to the outstanding reputation of theaters,
concert halls, night clubs, and other establishments in which the alien
has appeared or is scheduled to appear; and/or
(vi) Documents attesting to the outstanding reputation of theaters
or repertory companies, ballet troupes, orchestras, or other
organizations in which or with which the alien has performed during the
past year in a leading or starring capacity.
(e) Determination. An Immigration Officer determines whether the
employer and alien have met the applicable requirements of Sec. 656.10
and of Schedule A (Sec. 656.5); reviews the application; and determines
whether or not the alien is qualified for and intends to pursue the
Schedule A occupation. The Schedule A determination of DHS is conclusive
and final. The employer, therefore, may not appeal from any such
determination under the review procedures at Sec. 656.26.
(f) Department of Labor copy. If the alien qualifies for the
occupation, the Immigration Officer must indicate the occupation on the
Application for Permanent Employment Certification form. The Immigration
Officer then must promptly forward a copy of the Application for
Permanent Employment Certification form, without attachments, to the
Chief, Division of Foreign Labor Certification, indicating thereon the
occupation, the Immigration Officer who made the Schedule A
determination, and the date of the determination (see Sec. 656.30 for
the significance of this date).
(g) Refiling after denial. If an application for a Schedule A
occupation is denied, the employer, except where the occupation is as a
physical therapist or a professional nurse, may at any time file for a
labor certification on the alien beneficiary's behalf under Sec.
656.17. Labor certifications for professional nurses and for physical
therapists shall not be considered under Sec. 656.17.
