Colleges, universities, medical schools, and other institutions of higher education, prior to PERM, used the advantageous "Special Handling" labor certification process described at (pre-PERM) 20 CFR §656.21a(a) to pursue the permanent resident process for foreign nationals who were hired to perform "some" classroom teaching. Under PERM, there is even better news for these institutions. The Special Handling process remains intact, with some beneficial expansion. Indeed, the Special Handling process under PERM-always a popular process among educational institutions-may prove to be a key recruitment tool of hiring officials regarding foreign nations.

The Special Handling process offers the wonderful advantages and opportunities to the hiring officials of colleges and universities, medical schools, as well as other specially and professional institutions. Whenever an institution seeks to fill a position that involves some "classroom teaching", and such institution has engaged in a "competitive recruitment and selection process" the hiring official should think: Special Handling! However, the Alien college teachers must make sure the hiring official is keenly aware of the requirements of this process, and the uncertainty involved in processing times under the new PERM system. Please refer the following Q & A for some detail information.

Question 1: are College and university teacher occupations included in Schedule A?

No, only college and university teachers of exceptional ability in the sciences or arts who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States fall under Schedule A, Group II, Sciences or Arts.

Question 2: If an application is for a college or university teacher who does not qualify as a college or university teacher of exceptional ability what provisions apply?

Applications for college and university teachers who do not qualify under the Schedule A, Group II, Sciences or Arts provision may be filed either under the provision for optional special recruitment and documentation procedures for college and university teachers, § 656.18, or under the provision for the basic process, § 656.17.

Question 3: If an application for a Schedule A college or university teacher is denied, is the employer permitted to file for a labor certification under § 656.17?

Yes, the employer may file an application previously denied under Schedule A for a college or university teacher either under the provision for optional special recruitment and documentation procedures for college and university teachers, § 656.18, or under the provision for the basic process, § 656.17.

Question 4: Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process has been completed?

Yes, for college and university teachers, notices of filing may be posted after the selection process has been completed. An application for a college or university teacher may be filed up to 18 months after the selection is made and a notice of filing must be provided between 30 and 180 days prior to filing the application either by providing notice to the bargaining representative, if one exists, or by posting notice at the facility or location of employment.

Question 5: Is the employer required to provide notice of filing if an application is filed on behalf of a college and/or university teacher selected in the competitive selection and recruitment?

Yes, the employer must provide a notice of filing which must include the advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).

Question 6: Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?

No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process. However, the notice of filing must include the required advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).

Question 7: Is the employer required to provide notice of filing if an application is filed on behalf of a college and/or university teacher selected in the competitive selection and recruitment?

Yes, the employer must provide a notice of filing which must include the advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).

Question 8: Are the recruitment provisions different for college and university teachers?

Yes, while the employer may choose to recruit for college and university teachers under the basic process, the employer may choose to recruit under § 656.18, optional special recruitment and documentation procedures for college and university teachers.
NOTE: The employer must support hiring of the alien by documenting that the alien was found to be more qualified than each U.S. worker who applied for the job opportunity.

Question 9: Does the use of an electronic national professional journal satisfy the advertisement requirement under the college and university teachers' special recruitment and documentation provision?

No, use of an electronic national professional journal does not satisfy the optional special recruitment provision's advertising requirement. The employer must use a print publication.

Question 10: When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?

The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of alien.

Question 11: When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?

The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of alien.

Question 12: Is the employer permitted to use an electronic national professional or trade journal?

The employer may not use an electronic national professional journal to satisfy the provision found at 20 CFR 656.17(e)(1)(i)(B)(4) permitting the use of a journal as an alternative to one of the mandatory Sunday advertisements for professional positions. The employer may not use an electronic national professional journal to satisfy the provision found at § 656.18(b)(3) requiring an advertisement in a journal under optional special recruitment procedures for college and university teachers. The employer must use a print journal to satisfy these two requirements. However, if the employer wishes to use a professional or trade organization as a recruitment source to satisfy the additional recruitment required for professionals found at § 656.17(e)(1)(ii)(E), the employer may use that organization's electronic journal to place an advertisement. Dated copies of pages from the electronic journal showing the advertisement can serve to satisfy the documentation requirement.

Question 13: Must a prevailing wage determination be obtained from the State Workforce Agency (SWA) if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision?

Yes, a prevailing wage determination must be obtained from the SWA even if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision. The attestation provision of the PERM regulation requires the employer certify that the offered wage equals or exceeds the prevailing wage determined pursuant to the prevailing wage provision which, in turn, requires the employer to obtain a prevailing determination from the SWA having jurisdiction over the proposed area of intended employment.

Question 14: Must the employer request a prevailing wage from a State Workforce Agency (SWA) if a Collective Bargaining Agreement exists or the employer is choosing to use a Davis-Bacon Act or McNamara-O'Hara Service Contract Act wage?

Yes, the employer must always request a prevailing wage from the SWA having jurisdiction over the proposed area of intended employment. The SWA is responsible for evaluating whether the wage source chosen by the employer is applicable and/or acceptable.

Question 15: Is it possible to refile an application under the PERM optional special recruiting provision for college and university teachers if eighteen months or more have passed since the selection of the alien was made pursuant to a competitive recruitment and selection process?

No, an application can not be refiled under the PERM optional special recruiting provision on behalf of an alien selected pursuant to a competitive recruitment and selection process if eighteen months have passed since the selection of the alien.

For more questions about PERm Special Handling (Optional Special Recruitment) application for university faculty members, pleas contact us.