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))
We recommend that employers new to the PERM Special Handling process review the entirety of these guidelines carefully. Follow the links to review any particular area of the process.
- Uniqueness of the Labor Certification recruitment requirements
- Beginning the PERM Special Handling process
- Explanation of “Prevailing Wage”
- The Recruitment Stage
- Setting minimum requirements
- Search Committees
- After the PERM application is filed
- What is an audit?
- Timeline for the PERM Special Handling process
- Possible actions if a PERM Special Handling application is denied
- Required documentation for the College or University to keep after the PERM has been filed
- Next steps after the PERM Special Handling application is approved
- Curran, Berger & Kludt’s role in the PERM Special Handling process
- Employer Responsibilities
- A few simple guidelines for Colleges and Universities for running future employment ads
UNIQUENESS OF THE LABOR CERTIFICATION RECRUITMENT REQUIREMENTS
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:
- The statutory and regulatory standard that allows selecting the best qualified candidate applies in cases involving college or university teaching positions. The institution must demonstrate that the person hired for the teaching position was deemed best qualified for that position, which could be based on a variety of factors.
- Preferences listed in advertisements may be considered “implicit requirements.” If preferences (i.e. “Ph.D. preferred”) appear in advertisements, filing notices, or other recruitment steps, they must also be listed as job requirements on the PERM application form. If an employer places requirements or preferences in its advertisements that are not listed as requirements on the PERM application form, the labor certification may be denied as being in violation of the labor certification recruitment process.
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.
HOW TO BEGIN THE PERM SPECIAL HANDLING PROCESS
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.
EXPLANATION OF “PREVAILING WAGE”
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.
RECRUITMENT STAGE FOR SPECIAL HANDLING
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.
SETTING MINIMUM REQUIREMENTS
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:
- If there are other teachers who hold the same position as the employee being sponsored, the minimum requirements cannot exceed the qualifications held by those employees at the time of hire.
- The minimum requirements also cannot exceed the qualifications of individuals who had held the position previously.
- The foreign national employee must be able to prove that he/she met the requirements at the time he/she began work in the offered position. This means that you cannot require teaching skills or experience that the employee acquired “on the job,” nor can you require an academic degree that the employee received after he/she began work.
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.
AFTER THE PERM APPLICATION IS FILED
The PERM application will be reviewed by a Department of Labor analyst and one of three things will happen:
- The application will be approved.
- The application will be audited. (Special Handling cases are not audited very often, but there is never a guarantee that one will not be received)
- In rare cases, an application will be denied without an audit. This should only happen in cases where the recruitment requirements were not met.
WHAT IS AN AUDIT?
An audit is a request from the Department of Labor for clarification of further evidence regarding some detail or piece of the PERM application:
- Evidence of completion of all required recruitment steps, including evidence of all applications received and appropriate contact made with potentially qualified applicants.
- Explanation of why knowledge of a foreign language is required for the position.
- Explanation of why the position requires the minimum degree.
- Explanation of why the position requires a certain number of months or years of related employment experience of academic knowledge.
- Explanation of why travel is required for the position.
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.
TIMELINE FOR THE PERM SPECIAL HANDLING PROCESS
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 to 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 3-4 months (note that this changes frequently). 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 (6+) month wait after the audit response is filed to hear back from the Department of Labor.
POSSIBLE ACTIONS IF A PERM SPECIAL HANDLING APPLICATION IS DENIED
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.
REQUIRED DOCUMENTATION FOR THE COLLEGE OR UNIVERSITY TO KEEP AFTER THE PERM HAS BEEN FILED
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 & Kludt 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:
- A copy of the submitted PERM application (Form ETA 9089)
- Prevailing wage determination
- Signed and dated Recruitment Summary Letter
- Copies of tear sheets for any print ads (if applicable)
- Copies of website printouts for internet postings (if applicable)
- Signed and dated internal posting notice or union notice
- Signed and dated Statement of Qualifications for the Beneficiary
- Copy of original offer letter or new job confirmation letter.
NEXT STEPS AFTER THE PERM SPECIAL HANDLING APPLICATION IS APPROVED
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:
- Evidence that the institution has the “ability to pay” the employee the stated salary for the position. This evidence may include annual reports, audited financial statements, or other forms of evidence of available institutional funds. Other supplemental documentation includes evidence that the employee has been paid the offered wage since the filing of the PERM application: payroll records are the most common and successful demonstration of this.
- Evidence that the employee meets the minimum requirements for the position. This includes copies of relevant diplomas and transcripts to verify that the employee has the required degree in the required field of study, and licenses or certificates required, letters from previous employers certifying that the employee has the required amount of employment experience, or letters from the employee’s academic institutions attesting that they gained certain required knowledge through their academic coursework.
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.
CURRAN, BERGER & KLUDT’S ROLE IN THE PERM SPECIAL HANDLING PROCESS
Our office generally coordinates and prepares every stage of the process:
- We send targeted checklists to the employer and employee to gather all required information and documentation.
- We determine whether or not original recruitment ads for the position can be used for the PERM application.
- We help track down evidence of original ads run by the college of university, if not readily available.
- We organize the job description, minimum requirements, and advertising plan as set by the employer into an organized summary sheet.
- We place all ads (if necessary) and gather all documentary evidence of the recruitment process.
- We prepare the PERM application form (Form ETA 9089)
- We prepare the posting or union notice, recruitment summary letter, and statement of qualifications letter for signature.
- We file the application with the Department of Labor and track its progress.
- We prepare the PERM compliance file for the employer’s records after the PERM application is submitted.
- We prepare and file an audit response, should an audit be received.
- 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:
- Go through a simple process of registering the college or university for the PERM online system (if not already registered).
- Work with us to establish all necessary job details.
- Work with us to gather evidence of original recruitment, IF re-using original advertisements.
- Forward to us any applications received for the position for our records, and keep us updated throughout the process when applications are received.
- Review and sign the recruitment summary letter, statement of qualifications for the beneficiary, job confirmation letter (if applicable), posting or union notice, and other related documents prepared by our office.
- Respond to the emails from the Department of Labor following submission of the PERM Special Handling application asking the employer to confirm sponsorship.
- Work with us to establish necessary documentary evidence in the event of an audit.
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.
A FEW SIMPLE GUIDELINES FOR COLLEGES AND UNIVERSITIES FOR RUNNING FUTURE EMPLOYMENT ADS
- The ad MUST contain classroom teaching as a part of the job description.
- Make sure the ad is run in at least one national professional journal. If not run in print, online advertisements must be posted for at least 30 calendar days on the journal’s website.
- Employers should keep evidence of the start and end dates of the advertisements placed and the text of the ad by printing a copy of the ad from the journal’s website on the first and last day of position, or by saving copies of invoices or receipts which show the ad text and detail the length of time that the ad was posted.
- For print ads, save copies of all tear sheets. The tear sheet must contain the name of the publication and the date it was published.
- If you may be hiring more than one person, put “Multiple Positions Available” in the ad.
- Think carefully about the minimum requirements before listing them in the ad.
- Would you ever hire someone with less? Have you had someone in the position before with less? If you would consider a candidate who is A.B.D (“All But Dissertation”) for a position where a Ph.D is preferred, make sure to put Ph.D. or ABD in the ad. The individual must be qualified for the job described in the ad at the time they begin work.
- Note to be cautious concerning the usage of the word “preferred”. If the ad stated the minimum requirements to be “Ph.D. in Education preferred,” the Department of Labor may treat this preference as a requirement, and deny an application on this technicality for an employee who was hired without having completed a Ph.D. first.
- It is essential for the advertisement to be less restrictive rather than more restrictive.
- DOL regulations do not require that the ad be very long or detailed. The ad must contain only the job title, teaching duties, minimum requirements, work location, employer name, and specific address or method by which to send applications.