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Bloggings: February 13, 2008

by Joel Stewart

February 12, 2008

College and University Teachers

The PERM rule includes a separate part for college and university teachers. Located at 20 CFR 656.18, it is called "Optional special recruitment and documentation procedures for college and university teachers." The word "optional" refers to the fact that the employer has the option to either apply under this section or under 656.17 "Basic labor certification process."

The main difference about college and university teachers and other applications is that the successful candidate is selected on the basis of a competitive recruitment and selection process and must be found more qualified than any of the US workers who applied for the job.

This is counterpoint to the fact that in the basic labor certification process workers must be considered qualified even if they are mediocre or even poorly qualified, as long as they meet the minimum requirements. In view of the fact that minimum requirements are now determined by the O*NET, the result is that, if government standards are used, workers must be considered qualified even if they are below real life standards. However, under the "Optional special recruitment" procedure, college and university teachers may be selected because they are the best, not the worst. Query: Should this be expanded to include other groups of workers, not only college and university teachers?

The optional recruitment process relies on the determination of a college or university selection committee and its results, provided that the following conditions are met:

1. A detailed statement from a college or university official with actual hiring authority setting forth (i) The total number of applicants for the job opportunity and (ii) The specific lawful-job related reasons why the alien is more qualified than each U.S. worker who applied for the job.

2. A final report of the administrative body making the recommendation or selection of the alien at the end of a competitive recruitment and selection process.

3. A copy of at least one ad placed in a national professional journal

4. Evidence of all other recruitment sources utilized.

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

Questions have arisen whether the professional journal would may be electronic. While the DOL has advised that electronic journals should not be used under the basic recruitment process to satisfy one of the three Professional recruitment requirements, the section by the Optional special recruitment and documentation section deserves a separate analysis. Without any official guidance from DOL, I nevertheless reasoned the Employer might be able to use an electronic journal for recruitment of college and university teachers if (a) the electronic journal was a bona fide journal, and not just a list of jobs and (b) the electronic journal was consistent with industry standards in the specific case at hand. I suppose that a legitimate journal is one that offers specialized, academic articles to its readers (its principal purpose) and carries ads for job opportunities as well. The DOL would want employers to use journals because they attract serious and highly qualified persons who want to read articles regarding their academic specialty. Once attracted by the journal, these highly qualified persons could then read the ads for positions available.  Assuming a hypothetical web-based journal, it should have the appearance of a truly academic journal providing a source of academic discussion and debate as well as job announcements. The question is whether such an appropriate, electronic journal exists!

Another important item is the ime limit to file applications for college and university teachers. The period is 18 months after a selection is made pursuant to a competitive recruitment and selection process. Due to the fact that the selection process occurs on a continuum of time, it is sometimes hard to determine at which point the selection has actually been made. Perhaps at the time the committee made its recommendation? Or at the time the administrator finalizes the decision? Or possibly at the time the letter is generated to the alien? This is a question of act that needs to be determined on a case-by-case basis. Obviously, a letter written to the alien advising of the decision is determinative, however, an earlier date might be a valid date, depending on who decided what and when.

When all is said and done, if the conditions are not ripe to apply for Optional Recruitment and documentation, one can always apply under the basic labor certification process. And don't forget, college and university teachers may also be eligible under the 1st or 2nd preference categories without requiring a PERM filing, a fact which calls to mind the now-famous adage, "The best labor PERM case is no PERM case."