Recognizing the economic and social need of attracting high-skilled foreign talent, current immigration law entitles the government to “lower to bar” for certain professions and/or industry segments facing critical labor shortages by doing away with the procedural requirements typically mandated for any other type of employment-based immigration. One such avenue is known as a “Schedule-A” Green Card.

For years, the government has recognized the United States faces a debilitating shortage of Professional Nurses. Therefore, to serve the needs of the American people, Professional Nurses have been listed as “Schedule-A” occupations entitling qualified candidates to preferential treatment in the oft-times arduous Green Card process. Due to the COVID-19 pandemic, Congress is now considering the Healthcare Workforce Resilience Act (HWRA) which would further lower the immigration bar for qualified professional nurses thereby securing that crucial foreign talent for the benefit of Our Nation.

The foremost benefit of a Schedule-A Green Card is time and cost efficiency. A Schedule-A  petitioning employer is entitled to forego the entirety of the onerous Labor Certification process–employers are not required to run the typical recruitment process, aren’t required to pay for expensive job advertisement fees, and most importantly are not required to wait the 8-12+ months processing time for Labor Certification approval.

For the prospective immigrant employee, finding an employer willing to sponsor a Schedule-A Green Card does away with the uncertainty of whether your proposed employment will be certified by the Department of Labor [ETA 9098] and eliminates months if not years of Green Card processing time. Additionally, an individual qualified for a Schedule-A Green Card will accrue the protections of a Green Card far sooner than any other immigrant.

How do I qualify for a Schedule-A Green Card?

For Professional Nurses, a candidate must meet one of the following:

• Possess a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate,
• Have passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) exam, or
• Possess a permanent license to practice nursing in the particular state of intended employment.

Are Schedule-A Green Card in EB-2 or EB-3 Category?

Schedule A Green Cards can be filed in either EB-2 or EB-3 category. The question of whether or not a candidate is suitable for EB-2 and/or EB-3 will depend upon the sponsoring employer’s requirements for the position.

Schedule A Green Cards can be filed in either EB-2 or EB-3 category. The question of whether or not a candidate is suitable for EB-2 and/or EB-3 will depend upon the sponsoring employer’s requirements for the position.

What is the Schedule-A Green Card Process? Do I have a priority date?

In the Schedule-A Green Card process, the employer is not required to obtain a Labor Certification (ETA 9089) from the Department of Labor—a time, money, and labor intensive process. To file under the Schedule-A Green Card process, an employer must:

• file and wait for a Prevailing Wage Determination (PWD)—4-6 months processing time, then;
• Conspicuously place and document a Posting Notice regarding the offered employment in the office of intended employment for at least 10 days, then;
• Waiting at least 30 days but no more than 180 days from the last date of the Posting Notice, file the I-140 petition to classify the candidate for a Schedule-A Immigrant Visa—from 15 days to upwards of 8 months processing time; the day the I-140 is filed establishes the candidate’s Priority Date, then;
• If the candidate has a current Priority Date per USCIS and/or DHS’ Visa Bulletin, the candidate can then file the green card petition (I-485)—processing times are varied based on a number of factors.

Can I file for Schedule A Green Card if I am on OPT, CPT, H-4, EAD? Can I port my spouse’s priority date?

Your current or any past non-immigrant status has no relevance to your ability to file for a Schedule-A Green Card. So long as you qualify for a Schedule-A Green Card (proper licensure qualification, etc.), there is no legal bar to filing.

If you have questions about issues of immigrant intent, consult a qualified immigration attorney before filing your I-140. However, having a PWD filed on your behalf does nothing to impact issues of immigrant intent—only the filing of an I-140 and/or I-485 will have that effect.

Finally, if your spouse has an approved I-140, unfortunately you will not be able to utilize their priority date for your Schedule-A filing.

If Congress passes the Healthcare Workforce Resilience Act (HWRA), what will that do to Schedule A cases? 

Under the HWRA, Congress would make available at least 40,000 additional Green Cards for doctors and professional nurses by “recapturing” unissued Green Cards from past fiscal years—15,000 for doctors and 25,000 for professional nurses. It is our view that these Green Cards would be treated in the same as the Schedule-A (EB2 or EB-3) immigrant visa schema. Therefore, Professional Nurses would not be required to obtain Labor Certifications in filing for Green Card Petitions—currently or under the proposed HWRA. 

While the HWRA or any of Trump’s executive orders should do nothing to negatively impact the current Schedule-A immigrant visa program, passage of the HWRA will undoubtedly  shorten the green card processing times and acquisition times for qualified Professional Nurses—particularly for those  individuals from countries facing a visa backlog. 

If or when the HWRA becomes law, the door will quickly open for qualified Green Card filings. For those with an already approved or pending Schedule-A I-140, you will have a current priority date entitling your filing of an I-485 and soon-to-be receipt of permanent residency in the United States. For those qualified but without those without an approved or pending Schedule-A I-140, you will still be qualified to apply for a Green Card under HWRA but run the risk of “missing the boat”.

In any event, and regardless of whether the law passes or not, obtaining an I-140 Approval (Schedule-A or not), is an immense benefit for individuals 1) on H-1B visas and/or 2) facing an immediate visa backlog. Once you obtain an I-140 approval–regardless of whether you have immediate green card available—your ability to stay and remain in the United States is immensely improved.

For more information about Schedule-A Green Cards or the HWRA, feel free to email ryan@rnlawgroup.com with any questions or concerns.

By Ryan Wilck

Ryan is an attorney at Reddy & Neumann PC. Ryan began with the firm in 2012 as a law clerk and has continued with the firm as an attorney from 2014. His main practice covers immigrant visa petitions with skills and experience in various non-immigrant petitions as well as criminal issues.