Chapter 7 - Schedule A Designation Petitions

A. Background

The U.S. Department of Labor (DOL) adjudicates Applications for Permanent Employment Certification (ETA Form 9089 (PDF)), also referred to as permanent labor certifications. For certain occupations, DOL has predetermined there are not sufficient U.S. workers who are able, willing, qualified, and available pursuant to regulation.^[1] These occupations are referred to as Schedule A occupations. DOL has also determined that sheepherders are eligible for special processing.^[2]

For these two types of cases, the U.S. employer submits an uncertified application for permanent labor certification to USCIS at the time of filing the Immigrant Petition for Alien Workers (Form I-140), and USCIS reviews the application for permanent labor certification during the adjudication of the petition. USCIS applies DOL’s regulations to the application for permanent labor certification regarding whether or not the employer and beneficiary have met certain requirements, and USCIS’ regulations to the petition.

DOL requirements for Schedule A occupations and sheepherders are different from the normal requirements for other employment-based immigrant visa classifications. The fact that a petitioner can establish eligibility under DOL’s regulations only means that the permanent labor certification requirement is met. It does not mean that the beneficiary is eligible for the requested immigrant visa classification.^[3]

B. Eligibility for Schedule A Designation

In order to obtain an employment-based visa classification based on a Schedule A occupation, the petitioning employer must meet the eligibility requirements outlined in the table below.^[4]

Eligibility Requirements for Schedule A Designation
Requirement	For More Information
The employer must offer full-time permanent employment to the beneficiary.	20 CFR 656.3 (definitions of employer and employment)
The employment must be in one of the occupations categorized as a Schedule A occupation.	Section C, Schedule A Occupations [^{6 USCIS-PM E.7(C)]}
The employer must offer the beneficiary at least the prevailing wage.	Section D, Prevailing Wage Determinations and Notices of Filing [^{6 USCIS-PM E.7(D)]}
The employer must provide notice of the position(s) it seeks to fill to the employer’s bargaining representative, if applicable, or its employees.	Section D, Prevailing Wage Determinations and Notices of Filing [^{6 USCIS-PM E.7(D)]}
The beneficiary must meet the specific USCIS eligibility requirements.^[5]	8 CFR 204.5

C. Schedule A Occupations

For certain occupations, DOL has predetermined that there are not sufficient U.S. workers who are able, willing, qualified, and available. These occupations are referred to as Schedule A occupations, and the process to satisfy the permanent labor certification requirement is referred to as “blanket” labor certification. DOL has predetermined that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of noncitizens in those occupations.

The following occupations comprise Schedule A:^[6]

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.

Because of the occupational shortage of these U.S. workers, DOL has “pre-certified” Schedule A occupations. This means that an employer who wishes to hire a person for a Schedule A occupation is not required to conduct a test of the labor market and apply for a permanent labor certification with DOL. Rather, this employer must apply for Schedule A designation by submitting an application for permanent labor certification to USCIS in conjunction with the petition.

D. Prevailing Wage Determinations and Notices of Filing

1. Prevailing Wage Determination

An employer must obtain a valid prevailing wage determination from DOL’s National Prevailing Wage Center (NPWC) before it can file the petition with USCIS.^[7] The prevailing wage determination ensures that the wages offered to the beneficiary are reflective of the wages offered for comparable positions at the location where the job offer exists before the petitioner files the petition. In situations where there are multiple worksites (for example, the employer is a staffing agency), if the employer knows where they will place the beneficiary, the prevailing wage is the wage applicable to the area of intended employment where the worksite is located. If an employer with multiple clients does not know where they will place the beneficiary among its multiple clients, the prevailing wage is derived from the area of its headquarters.^[8] The wage offered to the beneficiary must be no less than 100 percent of the prevailing wage.

To obtain a prevailing wage determination, the employer must file an Application for Prevailing Wage Determination (Form ETA-9141 (PDF)) with the NPWC. The NPWC processes prevailing wage determination requests under DOL regulations and guidance and provides the employer with an appropriate prevailing wage rate on Form ETA-9141.

Form ETA-9141 must contain the NPWC’s determination date, as well as the validity period of the prevailing wage determination. The validity period may not be less than 90 days or more than 1 year from the determination date. An employer must file a petition within the validity period in order to use the prevailing wage rate provided by the NPWC.^[9]

2. Notice of Filing^[10]

Notice to Employees

Before an employer can file a petition, it must have also provided a notice of the position(s) it is seeking to fill under Schedule A, Group I or II, to the employer’s bargaining representative.^[11] Alternatively, if there is no such representative, then the employer must provide notice to its employees.^[12] Such notice must be posted for at least 10 consecutive business days^[13] in a clearly visible location at the facility or location of employment.^[14]

Notice for Every Occupation or Job Classification

An employer must post a separate notice for every occupation or job classification that is the subject of a request for Schedule A designation. However, regulations do not require a separate notice for every petition seeking designation under Schedule A. For example, an employer would post separate notices for a home health nurse and an emergency room nurse because the nurses have different job duties and wage rates. An employer can satisfy the notice of posting requirements with respect to several persons in each job classification with a single notice of posting, if the title, wage, requirements, and job location are the same for each person.^[15]

Applications Filed by Private Households

In the case of a private household, notice of filing is required only if the household employs one or more U.S. workers at the time the ETA Form 9089 is filed.^[16]

Evidence of Compliance

An employer must be able to document that it complied with the notice of posting requirements.^[17]

If the employer notified its bargaining representative, then it may submit as evidence a copy of both the letter and the ETA Form 9089 sent to the bargaining representative(s). If the employer notified its employees, the documentation requirement may be satisfied by providing a copy of the posted notice and stating where it was posted, and by providing copies of all the in-house media, whether electronic or print, that were used to distribute notice of the application in accordance with the procedures used for similar positions within the employer's organization.^[18]

3. Notice of Filing: Posting Requirements^[19]

Visible and Unobstructed

During the requisite posting period, a notice to the employees must be clearly visible and unobstructed while it is posted, and it must be posted in conspicuous places where the employer’s U.S. workers can easily read the posted notice on their way to or from their place of employment. Appropriate locations include locations in the immediate vicinity of DOL-required wage and hour notices or occupational safety and health notices.^[20]

Description of Job and Rate of Pay

The notice must contain a description of the job and rate of pay and indicate that it is provided as a result of the filing of an application for permanent employment certification for the relevant position.^[21] The rate of pay must meet or exceed the prevailing wage at the time of posting. If the notice contains a range of wages, the lowest wage rate must meet or exceed the prevailing wage at the time of posting.^[22]

DOL Certifying Officer Contact Information

In addition, a notice to the employees must also state that any person may provide documentary evidence bearing on the Schedule A labor certification application to the appropriate DOL Certifying Officer holding jurisdiction over the location where the beneficiary would be physically working.^[23] The notice must also provide the address of the appropriate Certifying Officer.^[24]

Period of Posting

Finally, the notice must be posted for at least 10 consecutive business days (including weekend days and holidays if these days are regular business days for the employer, that is, the employer is “open for business” on these days). In all cases, the burden is on the employer not only to establish that they posted the notice for 10 consecutive business days, but also that it was in an area that was accessible to its employees on each of these business days.

The notice must have been posted between 30 days and 180 days before the employer filed the petition.^[25] The last day of the posting must fall at least 30 days before filing in order to provide sufficient time for interested persons to submit, if they so choose, documentary evidence bearing on the application to DOL. Officers should deny the petition and any concurrently filed Form I-485 if the notice was not posted between 30 and 180 days before the petition’s filing.

“Business Day” for Purposes of Notice

The term “business day” typically means Monday through Friday, except for federal holidays. However, where an employer is open for business on Saturdays, Sundays, or holidays, the employer may include the Saturday, Sunday, or holiday in its count of the 10 consecutive business day period required for the posting of the notice of filing.^[26]

The employer, however, must demonstrate that it was open for business on those days and employees had access to the area where they could view the notice. Similarly, where an employer is not open for business on any day of the week, including Monday through Friday, the employer should not include any such days in its count of the 10 consecutive business days period required for the posting of the notice.

“Open for Business” for Purposes of Notice

If an employer must demonstrate that it was open for business on a Saturday, Sunday, or a holiday at the time of posting, the employer must provide documentation which establishes that on those days:

Employees were working on the premises and engaged in normal business activity;
The worksite was open and available to clients or customers, if applicable, as well as to employees; and
Employees had access to the area where the notice of filing was posted.

4. Notice of Filing: Posting Locations^[27]

Posting at Worksite

If the employer knows where the beneficiary will be placed, then the employer must post the notice at the worksite(s) where the beneficiary will perform the work, and publish the notice internally using in-house media (whether electronic or print) according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice is the wage applicable to the area of intended employment where the worksite is located.

If the employer currently employs relevant workers at multiple locations and does not know where the beneficiary will be placed, then the employer must post the notice at the worksite(s) of all of its locations or clients where relevant workers currently are placed, and publish the notice of filing internally using in-house media (whether electronic or print) according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question.

The situation of multiple work locations may arise in, but is not limited to, a scenario when the employer is a staffing agency which has clients under contract at the time that the employer seeks to post a timely notice of filing. In support of the petition, the employer may provide a copy of one posting notice supported by a list of all locations where the notice was posted and dates of posting in each location. The employer does not have to submit a copy of each notice.^[28]

Officers might encounter cases in which the employment is not full-time, permanent employment^[29] or where the worksite(s) is unknown and the employer has no current locations or clients. In those cases, the officer may deny the petition because no bona fide job opportunity exists.^[30]

In-house Media

An employer is required to publish the notice in all in-house media, whether electronic or print, that the employer normally uses to announce similar positions within its organization.^[31] The employer must submit as evidence a copy of all in-house media that was used to distribute notice of the application according to the procedures used for similar positions within the employer's organization.

E. Physical Therapists and Registered Nurses (Group I)

1. General Eligibility

A physical therapist is a person who applies 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).^[32]

A professional nurse is a person who applies 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.

A program of study for professional nurses generally includes theory and practice in clinical areas such as obstetrics, surgery, pediatrics, psychiatry, and medicine.^[33] Officers should compare the duties of the proffered position with the duties stated in the definition of “professional nurse” in determining whether the proffered position qualifies as that of a professional nurse.^[34] The classification for which the nurse is eligible depends on whether the position requires, and the beneficiary has, an advanced degree.

2. Bona Fide Job Offer

For Schedule A petitions, the petitioner must demonstrate that it is more likely than not that the petitioner is offering a bona fide full-time, permanent position.^[35] When considering this question, however, officers may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations.^[36] Specifically, there is no evidentiary requirement in the relevant and guiding statute or regulations that requires the petitioner to provide all contracts between the petitioner and its third-party clients for petitions generally and for Schedule A cases specifically.^[37] Officers may, however, review the terms of the job offer and documentation relevant to the other requirements.

The terms of the job offer are derived from the petition and ETA Form 9089. The headquarters’ worksite location and all of the potential client worksites to which the beneficiary could be assigned should be evident from the prevailing wage request and posting notice and other descriptive materials the petitioner voluntarily submits.

Other evidence related to the bona fide nature of the job offer includes that submitted to document the petitioner’s ability to pay the proffered wage.^[38] The record should also contain evidence of the beneficiary’s qualifications for the classification^[39] and any special requirements required by the job offer on the ETA Form 9089.^[40] Such evidence should illustrate that it is more likely than not that there is a bona fide job offer. An officer should be able to articulate a reasonable concern based on evidence either within or outside of the record to form the basis for a fraud referral for further investigation.

F. Evidence

1. Group I Occupations

For Group I, registered nurse occupations, the employer must submit evidence to establish that the beneficiary currently has (and had at the time of filing):

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.^[41]

For Group I, physical therapist occupations, the employer must submit evidence to establish that the beneficiary currently has (and had at the time of filing) a permanent license to practice in the state of intended employment. Minimum requirements must meet all state licensure requirements. In the alternative, the employer may submit a letter or statement signed by an authorized state physical therapy licensing official in the state of intended employment. This letter must indicate that the beneficiary is qualified to take the written licensing examination for physical therapists.^[42]

2. Group II Occupations

Immigrants of Exceptional Ability in the Sciences or Arts

To show that a beneficiary is of exceptional ability in the sciences or arts (excluding performing arts), the employer must submit documentary evidence testifying to the widespread acclaim and international recognition accorded to the beneficiary by recognized experts in the beneficiary’s field. In addition, the employer must submit documentation showing that the beneficiary’s work in that field during the past year did, and the intended work in the United States will, require exceptional ability. Finally, the employer must submit documentation concerning the beneficiary from at least two of the following seven categories, where “field” refers to the one in which the petitioner seeks certification for the beneficiary:

Documentation of the beneficiary's receipt of internationally recognized prizes or awards for excellence in the field;
Documentation of the beneficiary's 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 beneficiary, about the beneficiary's work in the field, which must include the title, date, and author of such published material;
Evidence of the beneficiary'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;
Evidence of the beneficiary's original scientific or scholarly research contributions of major significance in the field;
Evidence of the beneficiary's authorship of published scientific or scholarly articles in the field, in international professional journals or professional journals with an international circulation; and
Evidence of the display of the beneficiary's work, in the field, at artistic exhibitions in more than one country.^[43]

Immigrants of Exceptional Ability in the Performing Arts

To show that a noncitizen is of exceptional ability in the performing arts, the employer must submit documentary evidence that the beneficiary’s work experience during the past 12 months did, and the intended work in the United States will, require exceptional ability.^[44] Finally, the employer must submit sufficient documentation to show this exceptional ability, such as:

Documentation attesting to the current widespread acclaim and international recognition accorded to the beneficiary, and receipt of internationally recognized prizes or awards for excellence;
Published material by or about the beneficiary, such as critical reviews or articles in major newspapers, periodicals, or trade journals (the title, date, and author of such material must be indicated);
Documentary evidence of earnings commensurate with the claimed level of ability;
Playbills and star billings;
Documents attesting to the outstanding reputation of theaters, concert halls, night clubs, and other establishments in which the beneficiary has appeared or is scheduled to appear; or
Documents attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the beneficiary has performed during the past year in a leading or starring capacity.^[45]

G. Eligibility for Employment-based Immigrant Visa Classification

1. Physical Therapists and Professional Nurses (Group I)

For Schedule A, Group I occupations, an employer may seek to classify the beneficiary as a skilled worker or professional (employment-based 3rd preference or EB-3 category).^[46] Occasionally, an employer may seek to classify the position as an advanced degree professional (employment-based 2nd preference or EB-2 category).^[47]

The minimum requirement for professional nursing occupations is generally less than a bachelor’s degree and these occupations are therefore considered under the skilled worker classification.^[48] However, the minimum requirement for certain advanced or specialized professional nursing occupations may be a bachelor’s degree.

These occupations may be properly considered under the professional classification. In some cases, the minimum requirements may even be an advanced degree. Those occupations may be properly considered under the advanced degree classification. Officers may refer to The Occupational Information Network (O*NET)^[49] to determine the minimum educational requirements for professional nursing occupations.

According to O*NET, most physical therapist occupations require graduate school. O*NET classifies the position as a “Job Zone Five” with “extensive preparation needed.” Based on the state where the beneficiary will practice, these occupations may require a master’s degree, and some may even require a Doctor of Physical Therapy (DPT). Therefore, physical therapist occupations may be properly considered under the advanced degree professional classification if the employer can show that, based on the duties and education requirements on the ETA Form 9089, the position requires an advanced degree.

EB-2 classification is appropriate even if the state of intended employment issues physical therapist licenses to those persons who possess less than an advanced degree based on when the therapist obtained the degree (sometimes referred to as “grandfathering”).

As explained below, some states will license a person who only possess a minimum of a bachelor’s degree (and not an advanced degree) as a physical therapist based on the date the person obtained that degree.^[50] As long as an employer can show that the position requires, at a minimum, an advanced degree (including the regulatory equivalence of a bachelor of physical therapy followed by 5 years of progressive experience),^[51] for a worker to satisfactorily perform the job duties, and the physical therapist holds an advanced degree or its equivalent, then a petition may be properly considered under the advanced degree professional classification.

It is not unusual for an employer to require that the position’s duties and requirements exceed the state’s minimum licensing requirements. For example, the employer may require that the beneficiary possess an advanced degree even though the state only requires a bachelor’s degree to obtain licensure as a physical therapist. In this case, a petition may be properly considered under the advanced degree professional classification.

It is possible that the employer does not require that the position’s duties and requirements exceed the state’s minimum licensing requirements. For example, the employer may only require that the beneficiary possess a bachelor’s degree since the state only requires a bachelor’s degree to obtain licensure as a physical therapist. Since the minimum requirements are less than an advanced degree, a petition may be properly considered under the professional classification (and not under the advanced degree classification). However, the employer cannot require that the position’s duties and requirements be less than the state’s minimum licensing requirements.

An advanced degree is commonly the minimum requirement for licensure for the occupation of physical therapist. Previously, a bachelor’s degree was the minimum requirement for licensure in the occupation. As noted above, many states have “grandfathering” clauses that allow those who obtained a bachelor’s degree under the previous licensing requirements to continue working in the field. If a “grandfathered” beneficiary can show that he or she has 5 years of progressive experience following receipt of the bachelor’s degree, then he or she may be able to qualify under the advanced degree professional classification.

USCIS defines an advanced degree as any U.S. academic or professional degree or a foreign equivalent degree above that of a bachelor’s degree. USCIS considers an academic or professional degree above that of a bachelor’s degree an advanced degree if the occupation requires that degree.

Therefore, a U.S. or foreign equivalent bachelor’s degree would not qualify a beneficiary for the advanced degree professional classification, unless the beneficiary also possesses 5 years of progressive experience following the award of the bachelor’s degree.

The beneficiary must have obtained both the bachelor’s degree and the 5 years of progressive experience before the filing date of the permanent labor certification. In addition, USCIS does not consider training certifications and similar documents that are not academic or professional as advanced degrees.^[52]

2. Immigrants of Exceptional Ability (Group II)

For Schedule A, Group II occupations, an employer may seek to classify the position as an advanced degree professional or immigrant of exceptional ability.^[53] However, it is possible that an employer may seek to classify the position as a skilled worker or professional if the position does not require an advanced degree or a person of exceptional ability.

Officers should not confuse the requirements to designate a beneficiary under Schedule A, Group II (immigrants of exceptional ability in the sciences or arts, including performing arts) with the requirements to classify someone under the EB-2 category (for immigrants of exceptional ability in the sciences, arts, or business). Though both DOL and USCIS regulations refer to noncitizens of “exceptional ability,” each regulation defines the term “exceptional ability” differently.

DOL defines “exceptional ability” for Schedule A, Group II designation as “widespread acclaim and international recognition accorded the alien by recognized experts in the alien’s field.” USCIS defines exceptional ability for purposes of the EB-2 category as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.”^[54]

DOL’s standard for Schedule A, Group II designation is therefore somewhat similar to that used to classify a person under the employment-based 1st preference (EB-1A) category (for immigrants of extraordinary ability). Despite this similarity, the standard for the EB-1A category is different than the standard for Schedule A, Group II designation. Therefore, officers should take care not to erroneously apply the standard for the EB-1A category to a request for Schedule A, Group II designation.^[55]

The granting of Schedule A, Group II designation is separate from the adjudication of the immigrant visa petition. Eligibility for Schedule A, Group II designation does not guarantee approval of the petition itself, which must be adjudicated under the relevant regulations. Meeting the requirements for Schedule A designation only means that the petition met the permanent labor certification requirement. Officers must still make a separate determination on whether the position and the beneficiary meet the requirements for the requested classification. Conversely, meeting the eligibility requirements for the classification under the USCIS definition does not establish eligibility for Schedule A, Group II designation under DOL’s regulations.

Minimum Job Requirements

Officers should ensure that the actual education, training, and experience needed to perform the job listed in Item H of ETA Form 9089 reflect the true minimum requirements of the position.

For Schedule A positions, the petitioner submits an uncertified ETA Form 9089 concurrently with the petition directly with USCIS. Therefore, in Schedule A cases, USCIS, and not DOL, reviews the ETA Form 9089 using DOL regulations. The duties shown on the permanent labor certification should be appropriate for a Schedule A occupation (such as a position that requires licensure as a professional nurse, licensure as a physical therapist, or performance of a worker of exceptional ability). If necessary, the officer may issue a Request for Evidence to confirm the precise minimum job requirements.

Self-Petitions Not Allowed

A noncitizen may not self-petition for Schedule A, Group II designation. Each request for Schedule A designation requires a job offer, and a petition that includes a request for such designation filed by a U.S. employer.

H. Filing Requirements

For all Schedule A occupations, an employer must apply for permanent labor certification with USCIS. A USCIS denial is conclusive and is not reviewable by the Board of Alien Labor Certification Appeals (BALCA) under the review procedures provided in regulations.^[56]

DOL does not certify any occupation that is a Schedule A, Group I occupation under the basic permanent labor certification process.^[57] However, if USCIS denies a permanent labor certification application filed by an employer for a Schedule A, Group II occupation, the employer may then apply for a permanent labor certification from DOL using the basic permanent labor certification process.^[58]

Required Documentation

In order to apply for Schedule A designation for petitions filed on or after March 28, 2005,^[59] the petitioning employer must complete and submit:^[60]

A properly filed Immigrant Petition for Alien Workers (Form I-140), with appropriate filing fees;^[61]
An uncertified Application for Permanent Employment Certification (ETA Form 9089 (PDF)), with the employer and beneficiary’s original signatures (along with any representative’s signature, if relevant);
A prevailing wage determination issued by DOL’s NPWC, in which the validity period is not less than 90 days or more than 1 year from the determination date and the petition is filed during that validity period;^[62]
A copy of the notice sent to an appropriate collective bargaining unit, if applicable, or a copy of the notice posted at the facility or location of the employment,^[63] documenting posting for at least 10 consecutive business days and within the period between 30 and 180 days before the employer filed the petition;
Copies of all in-house media, whether electronic or printed, in accordance with the normal procedures used in the employer’s organization for the recruitment of positions similar to that specified on ETA Form 9089;
Evidence that the beneficiary meets the specific DOL requirements for Schedule A designation; ^[64] and
All other documentation required to show eligibility for the employment-based immigrant visa classification sought, such as evidence of its ability to pay and evidence that the beneficiary meets any additional requirements specified on the ETA Form 9089.

An employer must offer full-time permanent employment to a beneficiary. If USCIS has a reasonable and articulable reason to believe that it is more likely than not that the petitioning employer is not offering a bona fide job offer, officers may request additional evidence, such as copies of the employer’s contracts with worksites or clients.^[65] An employer that cannot offer full-time permanent employment as a beneficiary’s actual employer is ineligible to petition for the beneficiary.^[66]

I. Adjudication

If an employer meets all requirements for Schedule A designation and the petition is approvable, USCIS retains the ETA Form 9089 with the petition. If an employer did not meet all requirements for Schedule A designation, or the petition is not approvable, USCIS retains the permanent labor certification application with the petition. The officer does not complete Section O of the permanent labor certification.

The petitioner retains the right to file an appeal of USCIS’ decision with the Administrative Appeals Office (AAO).^[67] In addition, an employer which cannot meet the requirements for Schedule A, Group II may then apply for a permanent labor certification from DOL using the basic permanent labor certification process.^[68] However, DOL does not consider applications for permanent labor certifications for Schedule A, Group I occupations under the basic permanent labor certification process.^[69]

Footnotes

[^ 1] See 20 CFR 656.15. See INA 212(a)(5) for the general labor certification standard.

[^ 2] See 20 CFR 656.16.

[^ 3] See 20 CFR 656. For more information, see Chapter 2, Eligibility Requirements [6 USCIS-PM E.2].

[^ 4] See 20 CFR 656.10. See 20 CFR 656.15. These requirements are in addition to the general eligibility requirements for employment-based visa classification. See Chapter 2, Eligibility Requirements [6 USCIS-PM E.2].

[^ 5] The employer must also submit all other documentation required to show eligibility for the employment-based immigrant visa classification sought, such as evidence of its ability to pay, that the beneficiary and position qualify for the classification sought, and that the beneficiary meets the job requirements of the blanket labor certification.

[^ 6] See 20 CFR 656.5.

[^ 7] Before January 1, 2010, the State Workforce Agency (SWA) having jurisdiction over the area of intended employment processed prevailing wage determinations.

[^ 8] See the Office of Foreign Labor Certification (OFLC)’s Frequently Asked Questions and Answers webpage.

[^ 9] While the Schedule A regulations require that the employer obtain a prevailing wage determination that is valid at the time the employer files the petition, there is no requirement that the prevailing wage determination be obtained before the employer posts a notice of the position. In addition, there is no requirement that the wage on the posting notice must match the proffered wage, only that both must meet the prevailing wage.

[^ 10] See 20 CFR 656.10(d).

[^ 11] See 20 CFR 656.10(d)(1)(i).

[^ 12] See 20 CFR 656.10(d)(1)(ii).

[^ 13] See Period of Posting section below.

[^ 14] See 20 CFR 656.10(d)(1)(ii).

[^ 15] See generally OFLC’s Frequently Asked Questions and Answers webpage regarding the notice of filing.

[^ 16] See 20 CFR 656.10(d)(2).

[^ 17] See 20 CFR 656.15(b)(2). See Section H, Filing Requirements [6 USCIS-PM E.7(H)].

[^ 18] See 20 CFR 656.10(d)(1)(ii).

[^ 19] See Appendix: Sample Notice of Filing [6 USCIS-PM E.7, Appendices Tab].

[^ 20] See 20 CFR 656.10(d)(1)(ii).

[^ 21] See 20 CFR 656.10(d)(6). See 20 CFR 656.10(d)(3)(i).

[^ 22] See 69 FR 77325 (Dec. 27, 2004).

[^ 23] See 20 CFR 656.10(d)(3)(ii).

[^ 24] See 20 CFR 656.10(d)(3)(iii). Before June 1, 2008, there were two addresses depending on the location of the petitioning business: Atlanta or Chicago. On or after June 1, 2008, the Atlanta address must be listed on the posting notice. See DOL Employment and Training Administration (ETA) OFLC’s National Federal Processing Centers Contact webpage for the current mailing address for the appropriate Certifying Officer.

[^ 25] See 20 CFR 656.10(d)(3)(iv).

[^ 26] See Matter of Il Cortile Restaurant, 2010-PER-00683 (BALCA Oct. 12, 2010).

[^ 27] For all petitions filed after March 20, 2006 (or motions to reopen filed after March 20, 2006 to reopen a petition that was filed and denied after March 28, 2005), employers must comply with these posting requirements.

[^ 28] USCIS established a policy for officers to issue a Request for Evidence (RFE) to provide an employer with the opportunity to comply with the posting requirements if the petition was pending on March 20, 2006 (or was denied and a timely filed motion to reopen or reconsider was pending on March 20, 2006), and the employer timely posted a notice but not in the correct location(s) of intended employment as described above. If all posting requirements are met and the notice was posted the requisite 10 business days before the date of the RFE response, USCIS considers the notice of posting timely for adjudication purposes.

[^ 29] See 20 CFR 656.3.

[^ 30] See Section B, Eligibility for Schedule A Designation [6 USCIS-PM E.7(B)]. See OFLC’s Frequently Asked Questions and Answers webpage.

[^ 31] See 20 CFR 656.10(d)(1)(ii).

[^ 32] See 20 CFR 656.5(a)(3)(i).

[^ 33] See 20 CFR 656.5(a)(3)(i). DOL’s use of the term “professional” in 20 CFR 656.5(a)(3)(ii) has no bearing on the determination of whether a nurse qualifies as a professional or skilled worker under 8 CFR 204.5(l)(2).

[^ 34] See 20 CFR 656.5(a)(3)(ii). See Adjudication of H-1B Petitions for Nursing Occupations (PDF, 225.58 KB), PM-602-0104, issued February 18, 2015.

[^ 35] See 20 CFR 656.20(c)(10). See 20 CFR 656.3.

[^ 36] See Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). See Kazarian v. INS, 596 F.3d 1115, 1121 (9th Cir. 2010).

[^ 37] Even for Schedule A staffing agency scenarios, the applicable regulatory criteria do not include employment contracts as required evidence. See OFLC’s Frequently Asked Questions and Answers webpage, which explains that petitioners are not required to submit employment contracts. For the situation of nurse staffing agencies and “roving” employees (for example, foreign health care workers the petitioner will assign to work at third-party client worksites still to be determined as of the date of filing), DOL advised only that the petitioner should submit a prevailing wage determination for the headquarters location and posting notices at all of its clients’ worksites.

[^ 38] See Chapter 8, Documentation and Evidence [6 USCIS-PM E.8].

[^ 39] See Part F, Employment-Based Classifications [6 USCIS-PM F].

[^ 40] The requirements on the ETA Form 9089 should line up with those reflected on the Application for Prevailing Wage Determination (Form ETA-9141 (PDF)) and posting notice.

[^ 41] See 20 CFR 656.15(c)(2). The NCLEX-RN is administered by the National Council of State Boards of Nursing.

[^ 42] See 20 CFR 656.15(c)(1).

[^ 43] See 20 CFR 656.15(d)(1).

[^ 44] See Matter of Allied Concert Services, Inc., 88–INA–14 (BALCA 1988), which provides an example of how DOL previously evaluated the evidence for Schedule A Group II cases.

[^ 45] See 20 CFR 656.15(d)(2).

[^ 46] See INA 203(b)(3).

[^ 47] See INA 203(b)(2).

[^ 48] Skilled worker positions require 2 years of training or experience, which can include relevant post-secondary education, such as an associate’s degree. See 8 CFR 204.5(l)(2) (definition of skilled worker).

[^ 49] O*NET Online is sponsored by DOL’s Employment and Training Administration, and developed by the National Center for O*NET Development.

[^ 50] Officers must differentiate “grandfathering” for purposes of obtaining licensure and the requirements for obtaining EB-2 classification. States that permit a person to obtain licensure with less than an advanced degree specify the date by which the person would have had to obtain his or her baccalaureate degree to be considered “grandfathered.” In order to be eligible for EB-2 preference classification, even a grandfathered noncitizen would have to demonstrate that he or she obtained the baccalaureate degree and has at least 5 years of progressive post-baccalaureate experience in the field.

[^ 51] See 8 CFR 204.5(k)(2) (definition of advanced degree).

[^ 52] Evidence of a degree is the official academic record. See 8 CFR 204.5(k)(3)(i)(A). See 8 CFR 204.5(l)(3)(ii)(C).

[^ 53] See INA 203(b)(2).

[^ 54] See 8 CFR 204.5(k)(2) (definition of exceptional ability).

[^ 55] For example, Schedule A, Group II designation requires an employer to file the petition and does not allow for the submission of comparable evidence in place of the regulatory criteria.

[^ 56] See 20 CFR 656.26. See 20 CFR 656.15(e). See 20 CFR 656.15(e). For information on appeals to the USCIS Administrative Appeals Office, see Section I, Adjudication [6 USCIS-PM E.7(I)].

[^ 57] See 20 CFR 656.17. See 20 CFR 656.15(f). See DOL ETA’s Foreign Labor Certification webpage.

[^ 58] See 20 CFR 656.17. See Chapter 6, Permanent Labor Certification [6 USCIS-PM E.6] for further discussion of the basic permanent labor certification process.

[^ 59] On December 27, 2004, DOL published a final rule entitled Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System, which significantly restructured the permanent labor certification process. See 69 FR 77325 (Dec. 27, 2004). For information on Schedule A requirements before March 28, 2005, see prior 20 CFR 656.10 (PDF) and 20 CFR 656.22 (PDF).

[^ 60] See 20 CFR 656.10. See 20 CFR 656.15.

[^ 61] For information on filing fees, see the Form I-140 webpage.

[^ 62] If the petition was filed before January 1, 2010, then the prevailing wage determination would have been issued by the applicable State Workforce Agency (SWA).

[^ 63] For guidance on the appropriate posting location(s) for cases involving multiple worksites, see OFLC’s Frequently Asked Questions and Answers webpage.

[^ 64] See 20 CFR 656.5 and 20 CFR 656.15.

[^ 65] If the beneficiary will be assigned to other third-party worksites, that may impact the required contents of the notice of posting, the location of that notice, prevailing wage determination, ETA Form 9089, and the petition.

[^ 66] See 20 CFR 656.3. See Chapter 2, Eligibility Requirements [6 USCIS-PM E.2].

[^ 67] See 20 CFR 656.15(e) (the denial of a Schedule A case cannot be appealed through BALCA). DHS delegated the authority to adjudicate appeals to the AAO under the authority vested in the Secretary through the Homeland Security Act of 2002, Pub. L. 107-296 (PDF) (November 25, 2002). See Delegation Number 0150.1 (effective March 1, 2003). See 8 CFR 2.1. The AAO exercises appellate jurisdiction over matters described in 8 CFR 103.1(f)(3) (PDF) (in effect February 28, 2003), including decisions on petitions for an immigrant visa based on employment.

[^ 68] See 20 CFR 656.17. See Part F, Employment-Based Classifications [6 USCIS-PM F] for further discussion of that category.

[^ 69] See 20 CFR 656.15(f). See Section H, Filing Requirements [6 USCIS-PM E.7(H)].

Resources

20 CFR 656 - Labor Certification Process for Permanent Employment of Aliens in the United States

20 CFR 656.10 - General Instructions

20 CFR 656.15 - Applications for labor certification for Schedule A occupations

20 CFR 656.17 - Basic labor certification process

20 CFR 656.20 - Audit Procedures

20 CFR 656.26 - Board of Alien Labor Certification Appeals review of denials of labor certification

20 CFR 656.3 - Definitions

20 CFR 656.5 - Schedule A

8 CFR 204.5(a)-(l), (n) - Petitions for employment-based immigrants

8 CFR 204.5 - Petitions for employment-based immigrants

INA 201 - Worldwide level of immigration

INA 202 - Numerical limitations on individual foreign states

INA 203 - Allocation of immigrant visas

INA 203(b)(1), (2), (3) - Preference allocation for employment-based immigrants

INA 203(b)(2) - Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability

INA 203(b)(3) - Skilled workers, professionals, and other workers

INA 204, 8 CFR 204 - Procedure for granting immigrant status

INA 212(a)(5) - Labor certification and qualifications for certain immigrants

ETA Form 9089, Application for Permanent Employment Certification (PDF)

Form ETA-9141, Application for Prevailing Wage Determination (PDF)

G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

I-140, Immigrant Petition for Alien Worker

I-290B, Notice of Appeal or Motion

I-485, Application to Register Permanent Residence or Adjust Status

How to Use the USCIS Policy Manual Website (PDF, 2.99 MB)

Appendices

This appendix provides a general overview of the most common business forms or structures of petitioning employers, agents, or sponsors filing an Immigrant Petition for Alien Workers (Form I-140) or Petition for Nonimmigrant Worker (Form I-129). These forms or structures are also relevant to the new commercial enterprises underlying an Immigrant Petition by Standalone Investor (Form I-526) or Immigrant Petition by Regional Center Investor (Form I-526E).

This appendix includes information on how different types of businesses are formed, their fundamental characteristics, the various tax forms that each business organization files with the Internal Revenue Service (IRS), and basic tax terms. Generally, each business form or structure discussed in this appendix should have an Employer Identification Number (EIN), sometimes also called a Federal Tax Identification Number, or IRS Tax Number.^[1] An EIN is used to identify a business entity for IRS purposes.

State law generally governs the formation, operation, and dissolution of business entities. As each state has its own rules for business entities, an officer should refer to the relevant state statute or state authority’s website (such as the California Secretary of State’s Business Programs Division) if there is a specific question about a particular business entity.

A. Sole Proprietorship

1. Definition

A sole proprietorship is a for-profit business owned by one person (or a married couple, in some cases).^[2] A sole proprietorship is “a business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity.”^[3] Owners may operate on their own or may employ other people. The sole proprietorship is the simplest business form under which a person can operate a business. It is not a separate legal entity from its owner;^[4] for example, the owner remains responsible for the business debts.

A sole proprietorship can operate under the name of its owner or it can elect to do business under a fictitious name. The fictitious name is simply a trade name and does not create a legal entity separate from the sole proprietor owner.^[5]

2. Taxes

Income from the business is included on the owner’s personal income tax return, U.S. Individual Income Tax Return (IRS Form 1040). The profits and losses of the business are recorded and attached to the Form 1040 on Profit or Loss From Business (Schedule C); Supplemental Income or Loss (Schedule E); or Profit or Loss From Farming (Schedule F).

The owner’s adjusted gross income on Form 1040 is used as net income for ability to pay purposes; however, there are no tax forms that list the business’s current assets and liabilities. When determining a petitioner’s ability to pay the proffered wage, USCIS also considers a sole proprietor’s liquefiable personal assets as well as household expenses and other personal liabilities (such as rent, car payments, and child care expenses).

B. Partnership

A partnership is the relationship between two or more persons or entities who join to carry on a trade or business.^[6] Each person or entity contributes to the partnership something of value (for example, money, property, labor, or skill) and expects to share in the profits and losses of the business.^[7]

A partnership is created automatically when two or more persons or entities engage in a business enterprise for profit whether or not the persons or entities intend to form a partnership.^[8] Partners seeking increased accountability, however, may opt to have their arrangement memorialized in a partnership agreement. The following subsections provide an overview of the most common forms of partnerships. The type of partnership is identified at Schedule B, Line 1 of U.S. Return of Partnership Income (IRS Form 1065).

1. General Partnership

A general partnership is the simplest form of partnership, and as such, general partnerships are simply called partnerships.^[9] In a general partnership, all partners or owners may equally share responsibilities and liabilities.

A general partnership has the following characteristics:

A general partnership is created through an express or implied agreement;^[10]
A general partnership has two or more partners;^[11] and
The owners or partners, which may be other types of entities (such as a corporation or limited liability company), are all liable for all legal actions and debts the company faces.^[12]

2. Limited Partnership

A limited partnership^[13] is very similar to a general partnership, except that the partnership is partially owned by one or more limited partners and is managed exclusively by its general partner(s).^[14]

A limited partnership must have at least one general partner. The general partner, often another type of entity (typically a corporation or limited liability company), has management powers, the right to use partnership property, and is personally liable for the debts of the partnership.^[15]

Conversely, limited partners do not participate in the management of the business and are generally liable for the partnership’s debts only to the extent of their contributed investment. Limited partnerships permit a person to invest in a partnership while limiting their liability and involvement in its management. In general, a formal written agreement is required to create a limited partnership.^[16]

3. Limited Liability Partnership

In a limited liability partnership (LLP),^[17] all partners have limited liability similar to that of limited partners in a limited partnership, but without the limitations on control over the company.^[18] Some states limit usage of LLPs to certain professions (for example, lawyers).^[19]

4. Limited Liability Limited Partnership

A limited liability limited partnership (LLLP) is a modification of the limited partnership.^[20] Similar to a limited partnership, the LLLP consists of one or more general partners and one or more limited partners.^[21]

In general, the key features of an LLLP are:

The general partners manage the business operations of the LLLP, while the limited partners typically only maintain a passive financial interest;
It is designed to offer limited liability to all partners in the partnership; and
The partners decide the structure of the organization and the distribution of profits and losses. States usually recommend the partners establish a formal, written partnership agreement.^[22]

Not every state allows the formation of or recognizes LLLPs.

5. Taxes

The IRS generally considers partnerships to be pass-through tax entities, which means that the partnership itself does not pay income taxes and all of the profits and losses of the partnership pass through the business to the partners, who pay taxes on their share of the profits (or deduct their share of the losses) on their individual income tax returns.^[23] Each partner may share in the profits and losses of the partnership equally, or in proportion to their respective contributions to the partnership or as otherwise set out in a written partnership agreement.

Even though the partnership itself does not pay income taxes, it must file U.S. Return of Partnership Income (IRS Form 1065). This form is an informational return the IRS reviews to determine whether the partners are reporting their income correctly.^[24] Net income or loss (notated on tax forms as ordinary business income (loss))^[25] is found on IRS Form 1065 or Schedule K and net current assets are calculated from information on Schedule L.

C. Corporation

A corporation is a created by filing articles of incorporation with a state. In the eyes of the law, a corporation is a distinct body separate from its owners and management. Accordingly, a corporation is entitled to all legal rights afforded to individual persons, such as the ability to bring and defend lawsuits or to buy and sell property. The corporation’s most notable feature is that, subject to narrow exceptions, it protects its owners (shareholders) from personal liability for its debts and obligations.^[26] A corporation also has directors and officers who run the business.

A corporation has perpetual life. When a shareholder dies or otherwise elects to leave a corporation, the shareholder can transfer their stock to others. Corporate shareholders own the corporation, the board of directors manages the corporation through their direction and control of its officers, and, in almost all cases, the officers oversee the day-to-day operations of the corporation. The shareholders elect the directors, who in turn appoint the corporate officers. Often, particularly in smaller corporations, the same person might serve multiple roles within a corporation: shareholder, director, and officer.^[27]

A corporation’s shareholders, directors, and officers must observe particular formalities in a corporation’s operation and administration.^[28] For example, corporations must, on at least an annual basis, make decisions regarding a corporation’s management by formal vote and must record those votes in the corporate minutes. Meetings of shareholders and directors must be properly noticed and must meet quorum requirements. Finally, corporations must meet annual reporting requirements in their state of incorporation and in states where they do significant business.^[29]

1. Subchapter C Corporations

Corporations that have not elected to be taxed as a subchapter S corporation are by default taxed as a C corporation under Subchapter C of Chapter 1 of the Internal Revenue Code (IRC) where the general tax rules affecting corporations and their shareholders are located.^[30]

Taxes^[31]

A C corporation files U.S. Corporation Income Tax Return (IRS Form 1120). C corporations (and other entities electing to be taxed as C corporations) are the only type of businesses that must pay income taxes on profits.^[32] The subsections below discuss how other corporations file and pay their taxes.

Generally, a C corporation’s taxable profits consist of money kept in the company to cover expenses or expansion (called retained earnings) and profits that are distributed to the owners (shareholders) as dividends. These dividends are taxed twice, as the shareholders also pay taxes on these amounts.^[33] Net income (taxable income before net operating loss deduction and special deductions) appears on the IRS Form 1120 or 1120-A, while net current assets are calculated from information on Schedule L of IRS Form 1120 or 1120-A.

To reduce taxable profits, a C corporation can deduct many of its business expenses that the C corporation spends in the legitimate pursuit of profit.^[34]

2. Subchapter S Corporations

The subchapter S corporation is a variation of the standard subchapter C corporation. The rules for subchapter S corporations are found in the IRC^[35] and provide many of the benefits of partnership taxation while at the same time giving the owners limited liability protection from creditors.

An S corporation has the same corporate structure as a standard C corporation. It is a legal entity, chartered under state law, separate from its shareholders and officers, and there is generally limited liability for corporate shareholders. The difference is that the S corporation files an election on Election by a Small Business Corporation (IRS Form 2553), to be treated differently for federal tax purposes.

As with partnerships, the income, deductions, and tax credits of an S corporation flow through to shareholders annually, regardless of whether distributions (dividends) are made. Therefore, income is taxed solely at the shareholder level and not at the corporate level. To qualify for S corporation status, the corporation must meet certain requirements.^[36]

Taxes

An S corporation files U.S. Income Tax Return for an S Corporation (IRS Form 1120-S). The corporate income flows through and is reported on the shareholders’ individual tax returns. The corporation completes and files a Shareholder’s Share of Income, Deductions, Credits, etc. (Schedule K-1) with IRS Form 1120-S for each shareholder. The Schedule K-1 tells shareholders their allocable share of corporate income and deductions.

Shareholders must pay tax on their share of corporate income, regardless of whether it is actually distributed. Net income or loss, notated on tax forms as ordinary business income (loss),^[37] appears on the IRS Form 1120-S or its Schedule K, while net current assets are calculated from information on Schedule L.

3. Personal Service Corporation

A personal service corporation is a corporation where the employee-owners are engaged in the performance of personal services. The IRC defines personal services as services performed in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, and consulting.^[38]

To qualify as a personal service corporation, substantially all the corporation’s activities must involve the performance of personal services, and a percentage of the corporation’s stock must be owned by employees performing the personal services.^[39]

Taxes

A personal service corporation pays tax on its profits as a corporate entity. However, a personal service corporation is not allowed to use the graduated tax rates for other C corporations. Instead, it is subject to a flat tax based on the highest corporate tax rate. Because of the high tax rate, personal service corporations generally distribute their profits as wages to the employee-shareholders. In turn, the employee-shareholders pay personal taxes on their wages.^[40]

The personal service corporation files its taxes on IRS Form 1120. This form contains a box for the business to indicate that it is a personal service corporation.^[41] Net income or loss is notated on IRS Form 1120 or 1120-A as taxable income before net operating loss deduction and special deductions, while net current assets are calculated from information on IRS Form 1120 Schedule L.

D. Limited Liability Company

A limited liability company (LLC) is a hybrid entity, combining some of the most advantageous features of partnerships and corporations.^[42] LLCs were created to provide business owners with the liability protection that corporations enjoy without the double taxation. Under the default tax standard, earnings and losses of an LLC pass through to the owners and are included on their personal tax returns.^[43]

LLCs are similar to S corporations, except that LLCs are not limited in the number of owners or types of members.^[44] LLCs may be either member-managed (managed by each of its members) or manager-managed (managed by specified managers who may or may not be members of the LLC).^[45] The LLC’s operating agreement may distinguish between members and managing members. Generally, if such a distinction is made, managing members of the LLC are allowed a full participatory role in the business’s operation. However, depending on the operating agreement, even regular members may have a role in the business’s operation.

To set up an LLC, organizers file articles of organization with the secretary of state in the state where the LLC is formed. Some states also require the filing of an operating agreement, which is similar to a partnership agreement. LLCs do not necessarily have perpetual life and can be set up to dissolve after a set period of time, such as a specific number of years, upon the occurrence of a triggering event, such as the death or withdrawal of a member, or as otherwise provided in the operating agreement.

The IRS does not recognize an LLC as a classification for federal tax purposes and by default treats multi-member LLCs as a partnership and single-member LLCs as a disregarded entity (similar to a sole proprietorship) for tax purposes. As with other entities, however, an LLC may file an election to be taxed differently (such as a corporation).^[46]

1. Taxes

For federal income tax purposes, LLCs with two or more members are treated by default as partnerships (a pass-through entity) and must file the IRS Form 1065, discussed above under Section B, Partnership. Each partner receives a Partner’s Share of Income, Deductions, Credits, etc. (Schedule K-1) for their share of income or losses to be reported on that partner’s individual tax return.

If there is only one member in the LLC, it is treated as a disregarded entity (similar to a sole proprietorship) for tax purposes, and the owner reports the LLC’s income on the owner’s personal individual tax return on Schedules C, E, or F to the IRS Form 1040, discussed above under Section A, Sole Proprietorship.

As an option, LLCs may also elect to be taxed like a corporation by filing Entity Classification Election (IRS Form 8832). They can be treated as a regular C corporation (taxation of the entity’s income before any dividends or distributions to the members and then taxation of the dividends or distributions once received as income by the members), or as an S corporation. These corporations file IRS Form 1120 or 1120-S, discussed above under Section C, Corporation.

E. Non-Profit Organization

1. Overview

A non-profit organization (NPO) is an entity that serves some public purpose and therefore enjoys special treatment under the law, including often having tax-exempt status and the protection of directors, officers, and members from personal liability.^[47] Typically, NPOs are engaged in charitable, educational, religious, or artistic activities of public or private interest.^[48] Unlike a for-profit business entity, an NPO does not distribute profits to its owners.^[49] Instead, any profits must ultimately go back into the organization.

In general, an NPO is formed and governed under state statutes the same as other entity types, and often takes the form of nonprofit corporations or LLCs. Whether incorporated or unincorporated, an NPO must keep records, prepare minutes of meetings, and have a separate bank account.

The board of directors typically makes collaborative decisions regarding the operation of the NPO. The board defines the mission and the policies of the NPO, creates budgets and oversees finances, and hires an executive director. If the NPO has an executive director, the director carries out the daily functions of the NPO under the management of the board. The executive director’s job is also to advise and report information to the board about activities and programs, and to monitor finances.

2. Taxes

An incorporated or unincorporated NPO can qualify for tax-exempt status if it meets certain conditions. In most states, if an NPO qualifies for a federal tax exemption it also automatically qualifies for a state tax exemption. The federal government offers many different types of tax exemptions for non-profits under IRC 501(c).^[50] The most popular kind of NPO is called a 501(c)(3).^[51] Under this code section, the NPO is exempt from paying federal income taxes and contributions made to the non-profit are generally tax-deductible for the donors.

Most NPOs are required to file an annual informational return, called a Return of Organization Exempt From Income Tax (IRS Form 990 or IRS Form 990EZ), if the organization’s gross receipts exceed $50,000 from sources other than the exempt purpose.^[52] Some religious organizations are not required to file IRS Form 990 or 990EZ.^[53]

IRS Form 990 provides an analysis of an NPO’s revenue and expenses, and net income is stated on the form as revenue less expenses. The abbreviated balance sheet on IRS Form 990 does not identify which assets and liabilities are current and therefore is not useful for calculating net current assets.

Footnotes

[^ 1] See IRS’s Employer ID Numbers webpage. For an explanation of what types of business structures require an EIN, see IRS’s Do You Need an EIN webpage.

[^ 2] For an explanation of married couples and sole proprietorship, see IRS’s Frequently Asked Questions for Entities webpage.

[^ 3] See Black’s Law Dictionary (11th ed. 2019).

[^ 4] See Matter of United Investment Group (PDF), 19 I&N Dec. 248 (Comm. 1984).

[^ 5] See Michael Spadaccini, Ultimate Guide to Incorporating in Any State (Irvine, CA: Entrepreneur Press, 2010), p. 3. For a general overview of sole proprietorships, see Jeffrey F. Beatty and Susan S. Samuelson, Business Law and the Legal Environment (Cengage Learning, 2006), p. 755. See the U.S. Small Business Administration’s (SBA’s) Choose a business structure webpage.

[^ 6] See Section 101 of the Uniform Partnership Act (1997). The Uniform Partnership Act is a uniform act from the National Conference of Commissioners on Uniform State Laws for the governance of partnerships. It has been amended several times since its promulgation, most recently in 2011 and 2013. The Uniform Partnership Act has been enacted by most U.S. states.

[^ 7] See the IRS’s Tax Information For Partnerships webpage.

[^ 8] See Section 202(a) of the Uniform Partnership Act (1997).

[^ 9] See IRS’s Instructions for Form 1065.

[^ 10] A partnership can also be formed by estoppel (where a party is held out to be a partner and can be held liable for debts or damages incurred by the partnership). See definition of “partnership by estoppel,” Black’s Law Dictionary (11th ed. 2019). A written general partnership agreement usually identifies the names of the partners; the amount and type of contribution made by each partner; each partner’s initial percentage of ownership; the business activities conducted by the partnership; whether and how partnership interests can be transferred; and the conditions allowing dissolution of the partnership. See Section 103 of the Uniform Partnership Act (1997).

[^ 11] See the IRS’s Tax Information For Partnerships webpage.

[^ 12] See Section 306 of the Uniform Partnership Act (1997).

[^ 13] See the Uniform Limited Partnership Act (2001). The Uniform Limited Partnership Act is another uniform act from the National Conference of Commissioners on Uniform State Laws for the governance of partnerships.

[^ 14] See Angela Schneeman, Law of Corporations and Other Business Organizations (Cengage Learning, 2009), p. 114.

[^ 15] See Sections 201 and 404 of the Uniform Limited Partnership Act (2001).

[^ 16] The elements identified in these written agreements include the names of partners, the amount and type of contribution made by each partner, whether the partners hold a limited partnership interest, each partner’s initial percentage of ownership, the business activities of the limited partnership, whether and how partnership interests can be transferred, and the conditions allowing the dissolution of the limited partnership. See IRS Publication 541, Partnerships.

[^ 17] See IRS’s Instructions for Form 1065. See Section 1001 of the Uniform Partnership Act.

[^ 18] See the U.S. SBA’s Choose a business structure webpage.

[^ 19] See IRS’s SOI Tax Stats - Partnership Study Explanation of Selected Terms webpage.

[^ 20] For an example of limited partnerships and LLLPs, see page 21 of the Ohio Secretary of State’s publication, Start a Partnership in Ohio (PDF).

[^ 21] State law created and governs LLLPs. See, for example, page 21 of the Ohio Secretary of State’s publication, Start a Partnership in Ohio (PDF), and State of California Franchise Tax Board’s Limited liability limited partnership webpage.

[^ 22] For a discussion of one state’s LLLP provisions, see pages 21 to 23 of the Ohio Secretary of State’s publication, Start a Partnership in Ohio (PDF).

[^ 23] See IRS’s Tax Information For Partnerships webpage.

[^ 24] The partnership must also provide a Partner’s Share of Income, Deductions, Credits, etc. (Schedule K-1) to the IRS and to each partner, which breaks down each partner's share of the business's profits and losses. In turn, each partner reports this profit and loss information on Schedule E of the partner’s individual IRS Form 1040. See IRS’s Instructions for Schedule E.

[^ 25] Negative values are represented in parentheses on tax forms.

[^ 26] See Michael Spadaccini, Ultimate Guide to Incorporating in Any State (Irvine, CA: Entrepreneur Press, 2010), p. 8.

[^ 27] See Michael Spadaccini, Ultimate Guide to Incorporating in Any State (Irvine, CA: Entrepreneur Press, 2010), p. 8.

[^ 28] See William Meade Fletcher, Cyclopedia of the Law of Private Corporations, Vol. 1, section 41.31 (Sept. 2021 Update). See DeWitt Truck Brokers, Inc. v. W. Ray Flemming Fruit Co., 540 F.2d 681 (4th Cir. 1976) (court properly ignored the existence of a corporate entity where there was a failure to follow corporate formalities).

[^ 29] See Wachovia Securities, LLC v. Jahelka, 586 F.Supp.2d 972, 1002 (N.D.I.L. 2008) (disregarding a corporation’s existence when it failed to observe required corporate formalities such as holding regular meetings, taking minutes, and maintaining corporate records).

[^ 30] For instructions on electing a different taxation structure, see IRS’s S Corporations webpage and IRS’s Instructions for Form 1120.

[^ 31] When determining whether or not a corporation has the ability to pay the beneficiary the proffered wage, officers should refer to Volume 6, Immigrants, Part E, Employment-Based Immigration, Chapter 4, Ability to Pay [6 USCIS-PM E.4].

[^ 32] S corporations, partnerships, sole proprietorships, and limited liability companies (LLCs) are not taxed on business profits unless they elect otherwise; instead, the profits pass through the businesses to their owners, who report business income or losses on their personal tax returns.

[^ 33] See IRS Publication 542, Corporations.

[^ 34] In addition to start-up costs, operating expenses, and product and advertising outlays, a C corporation can deduct the salaries and bonuses it pays and all of the costs associated with medical and retirement plans for employees. See IRS’s Instructions for Form 1120.

[^ 35] See 26 U.S.C. 1361.

[^ 36] See IRS’s S Corporations webpage. A subchapter S corporation must be a domestic corporation; have only allowable shareholders (may include persons, certain trusts, and estates, but may not include partnerships, corporations, or non-resident shareholders); have no more than 100 shareholders; have only one class of stock (for example, no preferred stock allowed); and not be an ineligible corporation (such as certain financial institutions, insurance companies, and domestic international sales corporations).

[^ 37] Negative values are represented on tax forms by parentheses.

[^ 38] See 26 U.S.C. 448(d)(2).

[^ 39] See IRS Publication 542, Corporations.

[^ 40] See IRS’s Instructions for Form 1120.

[^ 41] When determining whether or not a corporation has the ability to pay the beneficiary the proffered wage, officers should refer to Volume 6, Immigrants, Part E, Employment-Based Immigration, Chapter 4, Ability to Pay [6 USCIS-PM E.4].

[^ 42] See the U.S. SBA’s Choose a business structure webpage.

[^ 43] While the default tax treatment for an LLC is pass-through taxation, as with all entities, it may elect to be taxed differently.

[^ 44] See IRS’s SOI Tax Stats - Partnership Study Explanation of Selected Terms webpage.

[^ 45] The powers and duties of members and managers are typically outlined in the LLC’s operating agreement. See U.S. SBA’s Basic Information About Operating Agreements webpage.

[^ 46] See IRS’s Limited Liability Company (LLC) webpage. A professional limited liability company (PLLC) is an LLC organized for the purpose of providing professional services, such as a doctor, chiropractor, lawyer, accountant, architect, landscape architect, or engineer. Some states permit LLCs to engage in the practice of a licensed profession through PLLCs. Exact requirements of PLLCs vary from state to state. Typically, a PLLC's members must all be professionals practicing the same profession. In addition, the limitation of personal liability of members does not extend to professional malpractice claims.

[^ 47] See Marilyn E. Phelan, Nonprofit Organizations: Law and Taxation, sections 1:1, 4:1, and 7:1 (Oct. 2022 Update).

[^ 48] See IRS’s Exempt Organization Types webpage.

[^ 49] See Marilyn E. Phelan, Nonprofit Organizations: Law and Taxation, section 1:2 (Oct. 2022 Update).

[^ 50] See 26 U.S.C. 501.

[^ 51] To qualify, the non-profit organization must be organized and operated exclusively for the exempt purposes set forth in IRC 501(c)(3)—charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals—and no part of their net earnings “may inure to any private shareholder or individual.” See 26 U.S.C. 501(c)(3). See IRS’s Exemption Requirements – 501(c)(3) Organizations webpage.

[^ 52] See IRS’s Instructions for Form 990 Return of Organization Exempt From Income Tax.

[^ 53] See IRS’s Instructions for Form 990 Return of Organization Exempt From Income Tax and IRS’s Tax Guide for Churches and Religious Organizations (PDF).

There is no specific form that petitioning employers must use to comply with the notice of filing requirements for Schedule A petitions. The following is a sample notice of filing that petitioners may elect to use in the workplace. USCIS developed this sample for stakeholders’ convenience. It is not intended to be relied upon to create or confer any right(s) or benefit(s), substantive or procedural, enforceable at law by any person or other party in benefit applications before USCIS, in removal proceedings, in litigation with the United States, or in any other form or manner.

Officers should accept notices that are modeled after the sample, but should not require use of the exact sample. Petitioning employers may use other notice formats as long as they comply with the DOL regulations.

Notice of the Filing of the Application for Permanent Employment Certification

This notice is being provided as a result of the filing of an Application for Permanent Employment Certification (ETA Form 9089). The employer intends to permanently employ a foreign national in the job opportunity described below.

Any person may provide documentary evidence bearing on the application to the Certifying Officer of the U.S. Department of Labor. The address of the Certifying Officer is:

_____________________________________________________________________

This Notice of Filing will be posted between 30 and 180 days before filing the permanent labor certification application.

INFORMATION ABOUT THE JOB OPPORTUNITY

EMPLOYER’S NAME: _________________________________________________________

POSITION TITLE: ____________________________________________________________

POSITION DUTIES: __________________________________________________________

___________________________________________________________________________

RATE OF PAY: $________ per ____________

ADDRESS(ES) OF EMPLOYMENT: ______________________________________________

____________________________________________________________________________

EMPLOYER STATES:

There is no bargaining representative for the job opportunity with the employer in the location(s) of intended employment.
This notice was clearly visible and unobstructed while posted. It was posted for at least ten (10) consecutive business days in a conspicuous location in the workplace, where the employer’s U.S. workers could readily read the posted notice, including but not limited to locations in the immediate vicinity of the wage and hour notices.
DATE POSTED: __________________________________
DATE REMOVED: ________________________________
LOCATION(S) WHERE THE NOTICE WAS POSTED: ___________________________________________________________________________________________________________________________

[SIGNATURE] DATE

___________________________ ___________________________

[PRINTED NAME AND TITLE]

___________________________

Updates

This technical update is part of an initiative to move existing policy guidance from the Adjudicator’s Field Manual (AFM) into the Policy Manual. This update does not make major substantive changes but consolidates and incorporates existing AFM guidance into the Policy Manual, streamlining USCIS’ immigration policy while removing obsolete information. This guidance replaces Chapters 22.1 and 22.2 of the AFM, related appendices, and policy memoranda.

Affected Sections

6 USCIS-PM E - Part E - Employment-Based Immigration

6 USCIS-PM F - Part F - Employment-Based Classifications

This technical update replaces all instances of the term “alien” with “noncitizen” or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address Schedule A designations.

Version History

No historical versions available.

Chapter 7 - Schedule A Designation Petitions

A. Background

B. Eligibility for Schedule A Designation

C. Schedule A Occupations

D. Prevailing Wage Determinations and Notices of Filing

1. Prevailing Wage Determination

2. Notice of Filing[10]

3. Notice of Filing: Posting Requirements[19]

4. Notice of Filing: Posting Locations[27]

E. Physical Therapists and Registered Nurses (Group I)

1. General Eligibility

2. Bona Fide Job Offer

F. Evidence

1. Group I Occupations

2. Group II Occupations

G. Eligibility for Employment-based Immigrant Visa Classification

1. Physical Therapists and Professional Nurses (Group I)

2. Immigrants of Exceptional Ability (Group II)

H. Filing Requirements

I. Adjudication

Footnotes

Resources

Appendices

A. Sole Proprietorship

1. Definition

2. Taxes

B. Partnership

1. General Partnership

2. Limited Partnership

3. Limited Liability Partnership

4. Limited Liability Limited Partnership

5. Taxes

C. Corporation

1. Subchapter C Corporations

2. Subchapter S Corporations

3. Personal Service Corporation

D. Limited Liability Company

1. Taxes

E. Non-Profit Organization

1. Overview

2. Taxes

Footnotes

Updates

Version History

2. Notice of Filing^[10]

3. Notice of Filing: Posting Requirements^[19]

4. Notice of Filing: Posting Locations^[27]