Professors, instructors, and lecturers at any post-secondary educational institution may be eligible for an expedited type of labor certification application called "Special Handling."
Special Handling grew from a 1976 congressional amendment to the Immigration and Nationality Act. The Congressional committee report notes that Congress was:
Particularly troubled by the rigid interpretation of this section of law as it pertains to research scholars and exceptional members of the teaching profession. More specifically, the Committee believes that the Department of Labor has impeded the efforts of colleges and universities to acquire outstanding educators or faculty members who possess specialized knowledge or a unique combination of administrative and teaching skills.
As a result, PERM Special Handling was created to allow colleges and universities to sponsor foreign nationals as permanent employees in teaching positions, as long as the foreign national is deemed best qualified for that position. This category is an excellent option for academics who do not qualify for Outstanding Researcher or other employment-based categories, or for those who do not want to prepare a research portfolio.
Note, however, that the employer is required by law to pay all costs and fees associated with the PERM labor certification stage. This includes attorney's fees and the costs of any advertisements, ( 20 CFR § 656.12 (b))
There are many ways that the recruitment for labor certification differs from traditional recruitment for colleges and universities. We understand that this process may be new to employers, and we are happy to discuss the requirements at any time.
The most important details about Special Handling Recruitment are as follows:
Note that while an employer may only include its requirements in its advertisements in order to ensure that the applicant pool is not improperly restricted, a college or university hiring for a teaching position may use its preferences in evaluating the relative qualifications of all applicants.
The first step in the process is a series of correspondence between the attorney, employer, and employee to establish the crucial details of the job for which the employee is being sponsored. At this stage we will determine whether or not the original ads placed for the position can be re-used for the application. Necessary initial details include job title, job duties, minimum education and experience requirements, job location, number of employees being supervised, and other important details.
After outlining these elements and determining the recruitment approach, we will draft a PERM Special Handling summary sheet, which includes all of the necessary details of the employment provided by the college, including the text that will be used for advertisements. We typically set up a conference call with all parties after the initial draft of the PERM summary sheet is in order to refine certain details and review the next steps in the process.
After all parties approve the content of the summary sheet (at the minimum the employer, employee, and employee's supervisor), we will then submit a prevailing wage request to the Department of Labor.
Each year the Department of Labor issues new data regarding the prevailing wage/salary for each of their job classifications in each geographic location.
Once the job details have been established, we submit an online request to the Deparment of Labor for a prevailing wage determination for the position. DOL will determine the prevailing wage for the position in the specified geographic location, based on the job duties, minimum education and experience requirement, and other possible details or requirements (such as a travel requirement to the other campuses and colleges). If the wage for the position is governed by a Collective Bargaining Agreement (CBA), documentation is submitted to DOL along with the request to show this.
This step is required for all PERM applications and sets the minimum wage that the employer must be willing to pay the employee at the time that the employee becomes a Legal Permanent Resident.
For post-secondary teaching positions, colleges and universities are required to demonstrate that the employee was hired as a result of a competitive recruitment and selection process, and was determined to be the best choice for the position.
Original advertisements for the position posted by the college or university may be used (if the ad does not violate any special handling ad regulations), and new ads may not have to be run. However, if re-using previous advertisements, the PERM application MUST be submitted to the Department of Labor within 18 months of the date of selection (usually the date of the job offer letter). Note that a notice of opportunity must be posted internally and be accessible to all employees, or a union notice must be provided to an appropriate union representative, regardless of whether or not the original ads are being used.
If the 18-month deadline has passed, or if the original employment ad does not conform to DOL regulations, the institution will have to run a new ad. However, only one ad must be run, and it must be run in a national professional journal (i.e. The Chronicle of Higher Education). If not in print, online ads can be used if posted for at least 30 calendar days on the national professional journal's website. After this ad is placed, the college must then re-select the sponsored employee as the most qualified candidate for the posting.
It is never permissible to tailor the minimum requirements for a position to the foreign national employee being sponsored. Because the institution is permitted to select the candidate that is the best fit for the position based on a wide variety of factors, minimum requirements alone do not fully quality any individual for the position.
Important notes about minimum requirements:
Regardless of whether or not ads are re-run at the PERM stage, the college will have to designate an individual who will review any applications for the position (some may be received as a result of the internal posting or union notice, which is required for all PERM applications), and designate a method for submitting applications. The person must be qualified to review applicants' qualifications against those of the employee being sponsored.
This individual must be willing to work with us to give regular reports on any applications received, as well as any contact with applicants. They must also be willing to sign a Recruitment Summary Letter after the entire process is completed, attesting that the required recruitment steps were taken, and the employee being sponsored has been re-selected as the best candidate for the position following the national search.
The PERM application will be reviewed by a Department of Labor analyst and one of three things will happen:
An audit is a request from the Department of Labor for clarification of further evidence regarding some detail or piece of the PERM application:
Because audits can be random and the percentage of cases audited by DOL is increasing, we take all necessary preliminary steps to both help avoid an audit, and be prepared for an audit should we receive one. The most common audit is a request for recruitment documentation and all applications received, accompanied by an explanation of how the employer determined that the sponsored employee was the most qualified candidate for the position.
The initial planning process usually takes 1-2 months. During this time, the details of the position and language for the advertisement will be carefully set and agreed upon, and the employee will be required to gather documentary evidence that he/she meets the minimum requirements for the position.
It can also take up the 90 days to receive the prevailing wage determination from the Department of Labor.
The employer must then observe a 30-day "quiet period" after the advertisement is run, posting notice is posted, or union notice is provided to the representative (whichever comes last), during which the institution must wait to receive any applications for the position as a result of the placed advertisement or internal posting notice.
Adjudication of the PERM application by the Department of Labor for straightforward special handling cases is currently taking between 6-7 months. A small percentage of cases are approved more quickly, and a small percentage of cases take longer. PERM applications are adjudicated on a case-by-case basis, and there is no guarantee of a decision by a particular time.
An audit slows the time line down considerably. PERM decisions after audits vary, but the employer should expect at least a several (4-6) month wait after the audit response is filed to hear back from the Department of Labor.
If the PERM case is ultimately denied, the institution has the option of filing an appeal. This appeal would have to state the employer's argument for why it believes the PERM application was denied in error. The certifying officer can either agree with that argument and approve the application, deny it, or forward it to the Board of Alien Labor Certification Appeals (BALCA). BALCA will then evaluate the application and evidence presented, and make a final binding decision on the case. Note that an employer can file a "Motion to Reopen" for re-review, if the certifying officer denies the PERM application after appeal.
If the PERM application is denied as the final decision, the employer will have to begin a new PERM Special Handling case for the sponsored employee if they wish to continue his or her employment through this means of employment authorization.
The only documentation the employer is required to keep during the PERM process is the applications received for the position, as well as a record of any contact with applicants.
Following submission of the PERM Special Handling application, Curran & Berger LLP will send to the employer a PERM "Compliance File," which must be kept with the employer for a minimum of five (5) years after the PERM application has been submitted. The Compliance File contains:
The next step is to file an I-140 Immigrant Worker petition with USCIS, which must be filed within 180 days of the PERM approval. The I-140 stage is the same for both regular PERM cases and Special Handling PERM cases.
The application is signed by the employer and includes two major components:
Please note that the employer must be willing to submit financial documents to USCIS with the I-140 petition to show ability to pay the offered wage/salary. The documents are confidential and not shared with the employee or with any other third party.
The third step in the process is the I-485 "green card" application. This application is filed by the employee and any dependent family members. The employer is not involed in this application, but may be asked to provide a letter confirming that the job offer still stands.
Our office generally coordinates and prepares every stage of the process:
Throughout the entire process, we are available to respond to any questions or concerns that arise.
For information detailing the attorney/employer relationship, please view the following article from the Department of Labor: Restatement of PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule.
In order for this process to be successful, the employer must be willing to:
Please note that the employer is required by law to pay all costs and fees associated with the PERM labor certification stage. This includes attorney's fees and the costs of any advertisements.