Employment Based Immigration Handbook
IV. PERMANENT RESIDENCY PROCESSING
IV.5 TYPE OF OFFERED POSITION UNDER (EB-2) LABOR CERTIFICATION
As to the differences between the Labor Certification processes under the EB-2 category, the duties of the position will determine if the petition is filed under “Special Handling” or “Basic Recruitment.”
IV.5(a) LABOR CERTIFICATION: SPECIAL HANDLING (FACULTY OR TEACHING POSITIONS) (EB-2)
When an applicant is seeking permanent residence in a traditional tenure-track or faculty position, the College or Department will have to show that this applicant was selected pursuant to a competitive recruitment and that they were the most qualified applicant. Appointed Counsel will make a recommendation on what positions qualify for Special Handling and how to proceed if it is unclear.
The general summary of steps for Special Handling includes but is not limited to the
following:
1) Obtaining a Prevailing Wage Determination;
2) Printed advertisement of the offered position, including specific information about the position, in a national professional journal for the requisite time period. The University will also need to follow internal policy and follow standard recruitment methods;
3) Posting of an internal Notice of Filing; and
4) A competitive recruitment report, which demonstrates clearly that the noncitizen/prospective employee, was found more qualified than any and all U.S. workers that applied for the position.
The PERM must be submitted within 18 months of selection of the candidate.
Special Handling requires extensive documentation of the recruitment process by the Department. The sponsoring Department will have to provide copies of the advertisements along with evidence that it was advertised and posted properly. The Department must also provide a detailed report regarding the number of total applicants and the lawful reasons why those applicants were not as qualified as the foreign national.
The sponsoring Department is charged with ensuring that rules and regulations regarding recruitment are followed and properly documented. Consultation with the assigned attorney will be available. The College or Department shall be responsible for keeping copies of all advertisements, postings, resumes and other supporting documentation for at least five years.
IV.5(b) LABOR CERTIFICATION: BASIC RECRUITMENT (NON-TEACHING PROFESSIONAL POSITIONS) (EB-2)
Prior to filing a PERM or Labor Certification Application, the University must demonstrate that it adequately tested the labor market in the preceding six months without finding any qualified U.S. workers. This test ensures that there were no U.S. applicants that were minimally qualified and who were ready and able to take the position on the terms offered.
Note: The standard for basic recruitment is dramatically different from the standard for special handling. In this scenario, UToledo shall not sponsor the Labor Certification if any minimally qualified U.S. worker applies for the posted position.
The general summary of steps includes but is not limited to the following:
1) Obtaining a Prevailing Wage Determination;
2) The University will need to perform at least six recruitment methods, which include but are not limited to the following:
1. Advertisement of the position in two print advertisements (i.e., two Sunday editions in the Toledo Blade);
2. 30-Day Job Order with the Ohio Department of Jobs and Family Services (ODJFS);
3. Internal Posting on The University of Toledo website;
4. A minimum of three other qualified recruitment methods from a list of 10 alternatives;
Note: Documentation and recording these recruitment steps are very important. Please discuss with the assigned attorney steps that will need to be taken as to the contents of the advertisement, the duration each advertisement must remain up, and evidencing that the steps have been taken.
3) Internal Notice of Filing;
4) PERM must be filed within 180 days of selection of the candidate; and
5) A detailed report outlining in detail the recruitment procedure and the fact that no U.S. worker was minimally qualified for the posted position.
Note:
Generally this will require a description of recruitment steps taken, number of applications received, steps taken to contact lawfully rejected applicants timely (seven days from receipt of application), interview process of applicants, number of people hired, number of U.S. workers rejected, and the lawful job-related reason they were rejected. Please discuss with Appointed Counsel what steps must be taken as to applicants (job seekers) that may apply for the position. This is an outline but is not totally comprehensive as Appointed Counsel will advise as to the proper steps and regulations.
A U.S. worker may be “minimally qualified” if the applicant lacked the skills necessary at the time to perform the duties, but the skills could have been acquired during a “reasonable” period of on-the-job training. Remember that the above is a brief summary, and discussion with appointed legal counsel will flesh out the above as well as other requirements. Again, the process should start with ample H-1B time remaining; best practice calls for the process to begin with a prospective Beneficiary having at least two years of H-1B time remaining.
The College or Department should keep documentation and all evidence of the filing for at least five years from the date of filing the PERM. The above is a simplified summary of the Labor Certification process. The assigned attorney will provide the sponsoring College or Department with detailed steps and explain the additional rules and regulations that may be applicable.
Go to the next section: IV.6 EB-1(B) Outstanding Professor/Researcher Category