CASE: I-140 (EB-2 Category) / Schedule A / Premium Processing
EMPLOYER: Nursing Care Facility
BENEFICIARY: Filipina
LOCATION: Houston, TX
Our client is from the Philippines. Her prospective employer-sponsor is willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she has a registered nurse license and the proffered position for her is a health services manager (nurse manager) at the nursing care facility, the petition wanted to try going for a “Schedule A” classification. They also wanted to do EB2 (requiring at least a Masters degree or Bachelors degree + 5 yrs experience).
The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without having to file a Labor Certification with the Department of Labor. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. We argued that the position of Health Services Manager should be classified under Schedule A. We argued that it falls under the broad spectrum of “professional nurse” occupations. We also argued that the job description has excerpts that fall under “professional nurse” and that the description justifies the requirements also of Bachelor’s degree in nursing and five years of related experiences.
Our client has a Bachelor’s degree in nursing and has more than five years total experience as a clinical director and as midwife. She also has a registered nursing license in the state of Texas. Our office was retained and we started on the Prevailing Wage Determination filing and other related matters.
Once the prevailing wage was determined, we filed the I-140 application on September 5, 2014 via premium processing. We included a job offer letter, the notice of filing, employment letter, and other necessary supporting documents. In our cover brief, we included the “ability to pay” argument and why the health services manager position falls under a Schedule A and EB2 designation.
However, on September 19, 2014, the USCIS issued a Notice of Intent to Deny. The USCIS argued that they cannot approve her I-140 petition because the proffered position, Health Services Manager, does not fall under Schedule A designation and it is not an EB-2 classified position.
We prepared an extensive response. In our response brief, we cited an AAO decision and argued that positions other than “registered nurses” can fall under the definition of professional nurses, and thus fall under the Schedule A designation as well. The position of Health Services Manager for Petitioner, considering its job description, is a “position other than registered nurses that still falls within the definition of a professional nurse.” As to the EB-2 classification argument, our office argued that the proffered position has a supervisory role and the complexity of job duties justify the EB-2 designation and the required 5 years experiences under the ONET Job Zone and the Department of Labor’s level. With this detailed response brief and other supporting documents, our office filed a Response to Notice of Intent to Deny to USCIS Texas Service Center on October 8, 2014.
Eventually, on October 22, 2014, the USCIS Texas Service Center approved her EB-2 I-140 petition. Now, with the approved EB-2 I-140 petition (priority date for EB2 Philippines nationals is current), she can file her adjustment of status application at any time (she could have filed it simultaneous to the I-140, we just want to make sure the I-140 was approved first).