Most employers who decide to sponsor an employee for permanent resident status must go through the Program Electronic Review Management (PERM) process with the Department of Labor (DOL). During the PERM process, employers must prove they could not hire a “minimally qualified” U.S. candidate for the position.
The DOL created PERM Special Handling for colleges and universities to sponsor noncitizen teaching faculty. Recognizing that, by nature, higher education faculty are the “best and brightest” of their field, PERM Special Handling removes the “minimally qualified” requirement, instead asking employers to prove the faculty member is the “most qualified” candidate for the position.
Who qualifies for PERM Special Handling?
PERM Special Handling is limited to professors, instructors, and lecturers at higher education institutions – that is, there must be a “teaching” component to the offered position to qualify. Colleges and universities can sponsor administrative staff and other non-teaching positions, but must use the traditional Labor Certification with the DOL.
Special Handling PERM Process
If the “Teacher” has received their offer letter within 18 months of filing the PERM, then no additional recruitment is required, otherwise, the college or university must undergo a new competitive recruitment process to sponsor the noncitizen for permanent residence status. For “re-recruitment”, the college or university must run one advertisement in a national professional journal (i.e. The Chronicle of Higher Education). Online ads can be used if posted for at least 30 calendar days on the national professional journal’s website.
After the advertisement is placed, the employer must re-select the sponsored employee as the most qualified candidate for the posting based on a competitive recruitment process.
Colleges and universities must also place a Posting Notice at the worksite for ten days and obtain a Prevailing Wage Determination from the DOL.
What documentation is required for PERM Special Handling?
Proactive planning is essential to demonstrate that the employee was hired as a result of a competitive recruitment and selection process, and should show how the employer determined the noncitizen candidate was the best choice for the position.
During the hiring process, employers should be careful to retain:
- Committee notes;
- Resumes received;
- Advertisements placed;
- Notes taken by the committee during the selection process; and
- Notes conducted during the interviews.
Employers should be prepared to answer the following questions:
- How did the committee get to its decision?
- How did the committee determine, based on the pool of resumes, to get to the four or five applicants that ultimately were interviewed?
- How did they go from the four or five applicants that were interviewed down to the selection of the one candidate?
This documentation essential – should a special handling case get audited, PERM regulations require detailed documentation of the hiring process and having this documentation on hand is vital to a successful case. Additionally, employers are required to retain this recruitment documentation for five years under the PERM regulations.
How Long is the Special Handling PERM Process?
For those cases where no additional recruitment is required, a Special Handling PERM can be completed in about 8-10 months – this includes time needed to obtain the Prevailing Wage Determination and the time needed for the DOL to process the Form ETA9089 once filed.
For those cases requiring “re-recruitment”, a Special Handling PERM generally takes about 12-15 months to complete – this includes the time needed to complete the new recruitment, to obtain the Prevailing Wage Determination, and the time needed for the DOL to process the Form ETA9089 once filed.
The Special Handling Process should be in the immigration toolbox of any higher education institution that relies on foreign talent. Need help getting started? Contact us today for a complimentary consultation.
