Aliens of Exceptional Ability.  

Alternatively, an alien may qualify for E21 visa preference classification if: (a) he or she has exceptional ability in the sciences, arts, or business, (b) will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and (c) if the alien's services in one of those fields are sought by an employer in the United States.   Note that the term "exceptional ability" is defined in 8 CFR 204.5(k)(i)(2) as "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”  This standard is of course lower than that for E11 aliens of extraordinary ability. 

(A) Evidence - 8 CFR 204.5(k)(3)(ii) provides that, in order to show the requisite exceptional ability, the petition must be accompanied by at least three of six criteria (set forth in 8 CFR 204.5(k)(3)(ii)).  This evidence must be indicative of or consistent with a degree of expertise significantly above that ordinarily encountered.  Therefore, evidence submitted to establish exceptional ability must somehow place the alien above others in the field in order to fulfill the criteria; qualifications possessed by every member of a given field cannot demonstrate a degree of expertise "significantly above that ordinarily encountered."  Note that section 203(b)(2)(C) of the Act provides that mere possession of a degree, diploma, certificate or similar award from a college, university school or other institution of learning shall not by itself be considered sufficient evidence of exceptional ability.  To meet the criterion set forth in 8 CFR 204.5(k)(3)(ii)(F), formal recognition in the form of certificates may have more weight than letters prepared for the petition "recognizing" the alien's achievements. 

(B) Comparable Evidence - 8 CFR 204.5(k)(3)(iii) allows for the submission of evidence "comparable" to that set forth in 8 CFR 204.5(k)(3)(ii) if the criteria set forth in 8 CFR 204.5(k)(3)(ii) do not readily apply to a petition filed on behalf of an "alien of exceptional ability."   

(C) Schedule A, Group II Labor Certification - Adjudicators should be careful not confuse Schedule A, Group II labor certification under 20 CFR 656.15(d) for aliens of "exceptional ability in the sciences or arts" with classification under section 203(b)(2) of the Act as an alien of "exceptional ability in the sciences, arts, professions, or business."  Under the Department of Labor's regulations at 20 CFR 656.15(d), an employer seeking labor certification on behalf of an alien of "exceptional ability in the sciences or arts" may apply directly to USCIS for Schedule A, Group II labor certification in lieu of applying to the Department of Labor for issuance of a labor certification.  The application for Schedule A, Group II is made in conjunction with the filing of the Form I-140 petition for E21 classification.  In order to obtain Schedule A, Group II certification, an employer must file documentary evidence showing "widespread acclaim and international recognition accorded the alien by recognized experts in the alien’s field" as well as evidence that the alien's work in that field during the past year and in the future will require “exceptional ability.”  In addition, the employer must present documentation from at least two of the seven groups listed in 20 CFR 656.15(d)((1)(i) - (vii), or, in the case of an alien of exceptional ability in the performing arts, from the list in 20 CFR 656.15(d)(2)(i) - (vi).  Though both the regulations governing Schedule A, Group II certification and the E21 provisions of the Act refer to aliens of “exceptional ability”, the term “exceptional ability” is defined differently by each.  The requirement for Schedule A, Group II labor certification to submit evidence showing "widespread acclaim and international recognition" is clearly a higher standard than the E21 requirement to demonstrate "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

The standard for Schedule A, Group II labor certification is actually closer to, though not exactly the same as, that for E11 classification.  Schedule A, Group II requires "widespread acclaim and international recognition," while the E11 classification requires "sustained national or international acclaim.”  Despite this similarity, the E11 standard is stricter than the Schedule A, Group II standard, as the E11 classification also requires that the alien establish that he or she "is one of that small percentage who have risen to the very top of the field of endeavor."

 Note also that the granting of Schedule A, Group II labor certification is separate from the adjudication of the E21 petition.  Eligibility for Schedule A, Group II labor certification therefore does not guarantee approval of the E21 petition itself, which must be adjudicated in accordance with the standards set forth in 8 CFR 204.5(k)(2) and/or (3).  Finally, note that an alien may not self-petition for Schedule A, Group II labor certification.  Schedule A designation requires a job offer, and a petition that includes a request for such designation must be filed by a United States employer, rather than by a self-petitioning alien. See 8 CFR 204.5(k)(1) and (4)(i).