Green Card Special Handing PERM Overview
Obtaining U.S. Permanent Resident Status through Employment Sponsorship
-Optional Special Recruitment and Documentation Procedures for College and University Teachers-
With limited exceptions, an employer sponsoring an employee for permanent residence must, as a first step, obtain a labor certification from the U.S. Department of Labor (the “DOL”) that the employment in question will neither displace qualified U.S. workers nor adversely affect wages and working conditions of U.S. workers. This memorandum describes the procedures that Virginia Tech (the “Employer”), and the hiring unit (the “Department”) will be required to follow to apply for a labor certification for the job being offered to the foreign national (the “Employee”). Specifically, this memorandum describes the procedures to be followed under the Optional Special Recruitment and Documentation Procedures for College and University Teachers (“Special Handling”) process.
The Special Handling labor certification is a recruitment process in which the Employer must satisfy the DOL that it made a good faith but unsuccessful effort to locate an equally qualified U.S. worker for the job offered to the Employee. To establish that the Employee is eligible for this program, the Department must advertise and recruit for the position in a national market and show that the Employee was chosen pursuant to a competitive recruitment and selection process, through which the Employee was found to be more qualified than any of the US workers who applied for the job. Note: this program is reserved for employees whose position includes teaching duties.
Further, in order to qualify for this program, the Employee’s labor certification application must be filed within eighteen (18) months from the date the Employee was selected for the position as shown on the offer of employment letter. There are no exceptions. Faculty positions are often offered several months before the actual appointment date, therefore we strongly recommend that Departments begin the labor certification process by contacting the International Support Services (“ISS) before the end of the Employee’s first semester at Virginia Tech.
The DOL has very detailed rules and procedures that the Employer must follow to conduct its recruitment for the job, and many of these rules and procedures differ significantly from the procedures normally followed by the university when we recruit for positions. Because the Employer may ultimately be required to provide documentation of its recruitment efforts to the DOL and because the DOL has broad discretion in adjudicating labor certification applications, the Employer’s failure to follow any of the procedures described in this memorandum could result in the denial of the application.
Initial Considerations Regarding a Labor Certification Application
In preparing the labor certification application and supporting documents, the Department must first specifically define the job to be covered by the application, the minimum requirements necessary for an individual to perform that job and the job duties. The Department can only include requirements that are necessary to perform the job's duties.
The DOL will scrutinize any requirements for the job that it deems overly restrictive. The Department must be prepared to show that each job requirement bears a reasonable relationship to the job in the context of the Employer’s business and is essential to perform the job’s duties in a reasonable manner. For example, the DOL strictly scrutinizes requirements such as foreign language requirements, experience levels that exceed the guidelines established by the DOL for the job, and other requirements that are outside the parameters of what most employers would set for similar jobs.
It is also critical for the Department to understand, at the outset, that if the DOL approves a labor certification application for the job offered, that approval is valid only for the position described on the application and only in the geographic area of intended employment covered by the application. In other words, from the time of filing the labor certification application through the approval of the Employee's application for U.S. permanent resident status (assuming that the labor certification application is approved), the Department must not materially change the offered job (including promotions, demotions or lateral changes) or transfer the Employee to a different city.
If the Department or the Employee is now aware of any changes in the coming years that may affect the application, please advise us of those changes immediately. Furthermore, from the time of filing the labor certification application through the approval of the Employee’s application for U.S. permanent resident status, please advise us of any such potential changes before they occur so we can evaluate their possible impact on the labor certification application.
The Employer must obtain from the DOL a prevailing wage determination (“PWD”) in order to be certain that the employer will pay the prevailing salary to the Employee, once the Employee’s green card application is approved. It is important to note that the Employer’s obligation to pay the salary reflected on the PWD does not commence until the green card application is finally approved (unless the Employee is working on an H-1B visa and the Department does not have other evidence to document that the salary being paid for H-1B purposes is the prevailing salary for the position in question).
Documenting the Employee’s Satisfaction of the Job Requirements
The Employer is required to state on the labor certification application the minimum requirements for the offered position, in terms of experience, education, training and any other special requirements. An important aspect of this requirement is documenting that the Employee possesses the minimum education and experience requirements for the offered position. The Employee must be able to objectively document that he or she met the position requirements at the time s/he was selected. This means that the Employee must provide copies of his or her educational credentials and letters from previous employers or other documents confirming that they possess the required minimum education and experience. We strongly recommend that the Employee provide these documents to us before the Department commits significant funds to recruitment advertising. In order to be able to rely on any of the experience that the Employee has acquired with the Employer and its affiliates, the Employer must demonstrate that the position covered by the labor certification application is not “substantially comparable” to the positions previously held.
Obtaining the PWD
The Employer must first request a PWD from the DOL for the job offered. International Support Services (“ISS”) will prepare and file the request for the PWD based on the minimum requirements for the position as prepared by the Department. In case the Employer disagrees with the DOL’s assessment of the appropriate PWD for the job offered, the law offers limited opportunities to the Employer to ask the DOL to reconsider and change its PWD. The PWD will specify its period of validity (which will be no less than 90 days or more than one year from the date of the PWD). The Employer must file any labor certification application or commence the required pre-filing recruitment within the validity periods of the PWD.
Recruitment for the Offered Job
Prior to filing the labor certification application, the Employer is required to conduct specific recruitment efforts for the offered job. The specific recruitment effort required of the Employer is an ad in a national journal that lists the duties, location and requirements for the position in question. The ad must specifically state that the position involves teaching duties and it must specify when the degree is required. If the doctorate is required at the time of appointment and not at the time of selection, the ad must state that. If the ad simply states “PhD required,” the DOL will interpret that to mean that the PhD was required at the time the employee was selected. Further, all requirements for the job must be included in the ad. Commonly overlooked requirements include occasional travel to attend professional conferences and the criminal background check.
In order to meet this recruitment requirement, the Employer must place at least one ad in a print edition of a national journal or it must place an ad that runs for a minimum of 30 days in an on-line edition of a national journal. While the DOL has not defined “national journal,” Virginia Tech has determined that it will only rely on ads that were placed on a websites that contain articles and that have an editorial board. If the Department chooses to use an online ad, it is the Department’s responsibility to log on to the website as a job seeker and print a copy of the ad on the first and last day that the ad runs. Departments are strongly encouraged to consult ISS prior to placing any ads to insure that the ads meet DOL requirements.
Posting of Job Notice at the Worksite
As part of its recruitment for the job in question, the Employer must post a notice of the job’s availability at the worksite. This notice must be posted for at least ten consecutive business days. The notice must be posted in a clearly visible and unobstructed location, where the Employer’s U.S. workers can easily read it on the way to or from their places of employment. Appropriate locations normally include bulletin boards where other federally mandated postings, such as Wage and Hour and OSHA postings, are placed.
The notice of the job’s availability posted by the Employer must contain the employer’s name, job title, duties, minimum requirements and worksite location (city and state). The notice must direct any applicants for the job to an appropriate individual in the Employer’s organization. ISS will prepare the notice to be posted at the worksite and provide it to the Department along with specific instructions for posting the notice.
Recruiting Procedures and Evaluation of Applicants
The Employer must recruit for the job prior to filing the labor certification application with the DOL. The Department must carefully consider any applicants who express an interest in the job, either from outside the university or from within, and determine whether or not any applicant has all of the requirements for the job described on the labor certification application and whether such applicants can fairly be considered equally qualified with the Employee. The Employee may not be involved in the recruitment process. The Department should interview, at least over the telephone, most, if not all, applicants who apply for the job and thoroughly document each interview (date, applicant’s qualifications, etc.).
After the conclusion of the recruitment period and before the filing of the labor certification application, the Department must prepare a recruitment report describing in detail the competitive recruitment and selection process used, the total number of applicants for the position and the specific lawful job-related reasons why the Employee was found to be more qualified than each U.S. worker who applied for the position. It is therefore crucial that the Department maintain detailed notes on the search process. This report must also contain a statement attesting to the degree of the Employee’s educational or professional qualifications and academic achievements. The search committee will also need to prepare a report recommending the Employee for the position. ISS will assist the Department with preparing these reports.
Processing the Application
The labor certification application may be filed electronically with the DOL. If the DOL approves the application, the Employer and the Employee may then proceed with the remaining steps to obtain U.S. permanent resident status for the Employee, which are described in more detail below. If the DOL has questions about the application, it can deny the application outright. As an alternative, the DOL can request an audit of the application and its supporting documentation.
As you can see, obtaining a labor certification requires the Department’s full support and involvement. The Department must be involved throughout the application process, as described in this memorandum. For example, the Department must be willing to comply with the recruitment and posting requirements and to interview any applicants who reasonably appear to be equally qualified. Moreover, the Department must be prepared to document the business necessity of any requirements for the job and to respond to any audit of the labor certification application by the DOL.
Completing the Process of Obtaining U.S. Permanent Resident Status
If the Employer obtains a labor certification for the offered job, the next step that the Employer must take is to qualify the Employee for one of the employment based quota categories available to employer-sponsored applicants. In this regard, the Employer must file an I-140 petition to obtain such classification from the United States Citizenship & Immigration Services (“USCIS”). The Employee has the option of completing the final step in obtaining U.S. permanent resident status either by filing an adjustment of status application at the appropriate service center of the USCIS or by applying for an immigrant visa at a U.S. Consulate in the country of last residence or nationality.
If the Employee is in the United States, the Employee may be eligible to complete the final step in obtaining U.S. permanent resident status through the adjustment of status process. An Employee eligible for adjustment of status may be able to file (depending upon the availability of the immigration quota) the adjustment of status application at the same time as the Employer files its I-140 petition. The Employee’s spouse and any accompanying unmarried children under age 21 are eligible to apply with the Employee at the same time, provided that they are also in the United States at the time of filing.
Instead of applying for adjustment of status, the Employee may complete the final step of U.S. permanent resident status by applying for an immigrant visa at a U.S. Consulate in the country of last residence or nationality. Individuals who are currently working in the United States generally opt to apply for adjustment of status with the USCIS instead of applying for an immigrant visa at a U.S. Consulate outside the United States. Individuals who have violated their immigration status while in the U.S. may not be eligible to file for adjustment of status and may have to return to their home country or country of last residence abroad to complete the process at a U.S. Consulate. Please note that the I-140 petition described above must be approved by the USCIS before an individual can pursue an immigrant visa application through a U.S. Consulate overseas.
As you can see, the procedures for obtaining a labor certification are complex. Our role in this matter will be to assist the Department and the Employee in reducing the difficulties as much as feasible. Obtaining the labor certification is the most significant obstacle that the Employee faces in qualifying for U.S. permanent resident status. Once the labor certification is obtained, the remaining procedures, although involving a considerable amount of paperwork and additional processing time, are, as a general rule, less difficult.
To obtain the information that we need to assist with this labor certification application, we have attached a questionnaire for your completion. Please answer all questions on the questionnaire thoroughly and provide the requested documents. We will be happy to discuss any questions you might have after reading this memorandum.