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§ 656.18 Optional PERM Special Handling recruitment and documentation procedures for college and university teachers.

(a) PERM Special Handling Filing Requirements.

Applications for certification of employment of college and university teachers must be filed by submitting a completed Application for Permanent Employment Certification form to the appropriate ETA application processing center.

(b) PERM Special Handling Recruitment.

The employer may recruit for college and university teachers under §656.17 or must be able to document the alien was selected for the job opportunity in a competitive recruitment and selection process through which the alien was found to be more qualified than any of the United States workers who applied for the job.

For teaching positions, colleges and universities must demonstrate that the employee was hired due to a competitive recruitment and selection process, and the applicant was the best candidate for the permanent position.

Advertisements for the position placed by the university are allowed if they compliant with PERM Special Handling regulations

If re-using previously run advertisements, it is required that the PERM application be filed with the DOL within 18 months of the date the applicant was selected.

A compliant NOF (Notice of Filing) must be posted and the Notice must be accessible (able to be viewed) to all employees, or a union notice must be provided to a bargaining representative.

If the 18-month window has passed, or if the original employment ad does not conform to DOL regulations, the University must post a new ad.

Only one ad must be run.

The one ad must be run in a national professional journal, such as The Chronicle of Higher Education.

If the University decides to not use a print ad, then online ads can be used.

The online ad must be 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.

For purposes of this paragraph (b), documentation of the “competitive recruitment and selection process” must include:

(1) A statement, signed by an official who has actual hiring authority from the employer outlining in detail the complete recruitment procedures undertaken; and which must set forth:

(i) The total number of applicants for the job opportunity;

(ii) The specific lawful job-related reasons why the alien is more qualified than each U.S. worker who applied for the job; and

(2) A final report of the faculty, student, and/or administrative body making the recommendation or selection of the alien, at the completion of the competitive recruitment and selection process;

(3) A copy of at least one advertisement for the job opportunity placed in a national professional journal, giving the name and the date(s) of publication; and which states the job title, duties, and requirements;

(4) Evidence of all other recruitment sources utilized; and

(5) A written statement attesting to the degree of the alien’s educational or professional qualifications and academic achievements.

(c) Time limit for filing PERM Special Handling petitions. Applications for permanent alien labor certification for job opportunities as college and university teachers must be filed within 18 months after a selection is made pursuant to a competitive recruitment and selection process.

(d) Alternative procedure for PERM Special Handling. An employer that can not or does not choose to satisfy the special recruitment procedures for a college or university teacher under this section may avail itself of the basic process at §656.17.

An employer that files for certification of employment of college and university teachers under §656.17 or this section must be able to document, if requested by the Certifying Officer, in accordance with §656.24(a)(2)(ii), the alien was found to be more qualified than each U.S. worker who applied for the job opportunity.

PERM Special Handling for college and university teachers relieves the employer of several obligations, including the need for further recruitment.

Importantly, PERM special handling allows employers to hire the most qualified individual rather than a minimally qualified U.S. worker.

The employer must demonstrate that it conducted a previous competitive recruitment selection process (involving at least one advertisement in a national professional journal), which found the alien to be more qualified than any of the U.S. workers who applied for the job.

However, for special handling to apply, a labor certification application for a college or university teacher must be filed within eighteen months after the alien was selected for the job.

Assuming the college, university, medical school, or any other professional school has pursued the required competitive recruitment process, Special Handling can be pursued for foreign nationals who have been offered positions that include, but are not limited to: professor, associate professor, assistant professor, instructor, lecturer, and, of course, teacher.

“Teaching” Component Required:

Although the “job title” on ETA 9089 is ordinarily for one of the above positions, Special Handling may be pursued for positions whose titles do not imply teaching as long as classroom teaching is associated with the position and can be evidenced.

The TAG actually suggests that nonteaching positions, such as researchers, librarians, and other administrative staff can be processed under 20 CFR §656.17, the basic labor certification process, or under 20 CFR §656.10, if the alien qualifies for Schedule A (pursuant to PERM, Schedule A is set forth under 20 CFR §656.15).

Thus, a practitioner can pursue PERM Special Handling for these and other positions so long as the position includes “classroom teaching.” The TAG provides that a (certifiable) position need only involve “some actual class¬room teaching.”

This flexible standard allows for the reality that college faculty positions do not only involve teaching, but also could involve research, advising, and/or coaching.

A minimum standard in terms of teaching hours has not been set by DOL, nor does Form ETA 9089 specifically require that the number of hours of classroom teaching be specified.

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