Special Handling PERM vs. Regular PERM: A Brief Comparison
Author: Jian Joe Zhou and Andrew Durham
A Special Handling process allows a higher education employer to file a PERM labor certification petition for a teaching position through a simplified process. The Special Handling PERM is specific to teaching positions at institutions of higher education. Because of this, it simplifies the recruitment process and enables the employer to hire the most qualified applicant to ensure a high level of academic quality. This article will explain the benefits for a higher education employer to file a Special Handling PERM for a teaching position, with comparison to the regular PERM petition.
Nature of Position
The Special Handling PERM is limited to full-time faculty positions that involve teaching duties at institutions of higher education. For a position to be eligible for Special Handling it must involve some amount of actual classroom teaching. A traditional tenure-tracked professorship involving classroom teaching is the most common position that qualifies as a “Teaching Position” for Special Handling. Instructors selected through nationwide selection may also qualify for Special Handling. Moreover, some non-traditional faculty and staff positions, such as research professors, librarians, and lab instructors, may qualify as “Teaching Positions” for Special Handling purposes so long as they involve some actual classroom teaching (such as one class a week). In some cases, the time dedicated to teaching duties can be less than 50% of total working hours. Of course, meeting the “Teaching Position” element is only satisfying one requirement of Special Handling; other requirements have to be met to be eligible to file through Special Handling. Also, the teaching position must be at an accredited institution which issues bachelor’s degrees or higher degrees, or institutions with 2-year programs which can be counted as credit towards bachelor’s degrees or higher degrees
Simplified Procedure and Job Advertising
The procedure and job advertising requirements for the Special Handling PERM are more simplified and less demanding than the regular PERM. Special Handling has fewer job advertising requirements than the regular PERM. The major requirement for Special Handling job advertising is a posting in a national professional journal. This posting requirement can be satisfied by placing a job advertisement either once in the journal’s hard copy edition or for 30 calendar days in its electronic edition (online website). This requirement is to ensure that the recruitment process attracts applicants from around the nation. During the recruitment process for Special Handling, only one job advertisement needs to be placed in a national professional journal. Additional recruiting measures are allowed with Special Handling, but are not required.
In comparison, for the regular PERM there are three (3) mandatory and three (3) additional recruitment steps for a total of six (6) different types of recruitment. For a list of these mandatory and additional recruiting steps of the regular PERM see: Advertising and Recruitment Requirements.
Flexibility of Content in Internal Job Posting
Special Handling does not require the salary of the petitioned position to be listed on the internal job posting. An internal job posting is to advise current employees that a labor certification application may be filed for an alien beneficiary and is a mandatory requirement for all PERM filings. In the regular PERM process it is mandatory that the salary of the position be listed. This listed salary must be more than or equal to the prevailing wage as determined by the appropriate State Workforce Agency (SWA). If this listed salary on the internal job posting does not match the salary offered to the alien, a PERM petition may be denied. In Special Handling the salary of the position does not have to be listed in the internal job posting. This is yet another unique aspect of Special Handling that makes the process easier and offers the employer a less burdening posting process, as posting salary in a workplace can be a sensitive issue to colleagues and also involves a potential discrepancy risk. For PERM applications where salary listing is required in the internal job posting, the DOL has denied cases in which the listed salary was one hundred dollars different than the salary put in the petition form)
Both regular and Special Handling PERMs require the internal job posting to be placed for 10 consecutive business days, with the end of this period at least 30 days, but no more than 180 days, before the date of labor certification filing. For the regular PERM this internal job posting occurs during the same time frame as recruitment. For Special Handling this internal job posting can be done after the recruitment process. Thus, Special Handling internal job postings give the employer more time to post outside of the busy recruitment process.
Flexibility of Time Frame
The Special Handling PERM gives the employer a more flexible time frame to file for labor certification after the selection process. For Special Handling, the employer has up to 18 months to file the PERM. For the regular PERM, a labor certification petition must be filed no more than 180 days after the recruitment process. Special Handling allows much more time between the recruitment process and petitioning for labor certification.
Nationwide vs. Local Recruiting
Special Handling is designed to simplify the filing process for teaching positions in accordance with the tradition of higher education recruiting. The Special Handling PERM requires the filing employer to use a nationwide recruitment process. This means that the requirement for the regular PERM of posting a job order through a SWA for 30 consecutive days during the recruitment process does not apply to Special Handling. In addition, the posting for Special Handling must be in a national professional journal while most steps of the regular PERM are very focused on local job markets. This local focus of the regular PERM is shown by the major requirement of two Sunday newspaper postings in the employer’s metropolitan area. Special Handling is used when an employer seeks the most qualified teaching applicant regardless of geographic location, whereas the regular PERM must, in addition to any national job postings, test the local job market to see whether there are sufficient minimally qualified local U.S. workers for the position.
Minimum Standard vs. Superior Standard
All positions filed under Special Handling can use a superior qualification standard in the selection process. This means that an employer can file a labor certification application under the Special Handling PERM if the alien beneficiary was found to be more qualified for the teaching position than all other applicants. For most regular PERM cases the employer is required to reserve the job opportunity for any minimally qualified U.S. worker. For the regular PERM this means that if sufficient interested, able, and willing U.S. workers meet the minimum qualifications for the position, then the employer will not be able to file a successful labor certification petition for the alien beneficiary, even if the alien is more qualified for the position. However, qualified teaching positions at institutions of higher education filed under the regular PERM process still use the superior standard.
The Special Handling PERM is more simplified in posting requirements, has significant time frame advantages, and ensures that the most qualified applicant receives the position. However, it is still a time-sensitive filing process which requires substantial documentation of the recruiting procedures. The most important things to keep in mind with Special Handling filing are the national professional journal posting requirement and the 18 month labor certification filing deadline after the date of selection. If either of these requirements is not met the employer will not be able to file a successful Special Handling petition. Reopening a national selection procedure or applying through the regular PERM will be tedious and time consuming for the employer, if practical at all. For aliens with potential teaching positions it is recommended that they familiarize themselves with the Special Handling requirements and consult with an experienced attorney if needed. Human resources personnel from institutions of higher education should also check the Special Handling requirements if they expect to see qualified alien applicants.
Attorney Jian Joe Zhou is a Co-managing attorney at Zhang & Associates, P.C. Joe is one of the leading practitioners in PERM and pre-PERM labor certification petitions, especially in assisting small and mid- sized businesses. With more than 12 years of experience in employment and business immigration law practice, Joe is an expert in PERM, EB-1, NIW, and EB-5 immigration petitions as well as in H, L, and E worker visas. He may be reached at email@example.com
Andrew Durham is a law clerk at Zhang & Associates, P.C.
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