Institutions of Higher Education, such as colleges and universities, are offered a number of advantages under U.S. immigration law. These institutions are exempt from the H-1B cap and from the ACWIA fee, and they also have access to additional green card processes. For example, these institutions enjoy a more streamlined PERM process for teaching faculty and staff, known as “special handling.” Special handling is “special” because, inter alia, it allows the employer to select the most qualified candidate for the position—unheard of in the PERM context. However, as special as it is, special handling will only qualify the beneficiary for EB-2, which may be a concern for Chinese and Indian nationals. Fortunately, institutions of higher education are also eligible to petition in the outstanding researcher/professor category—which is EB-1.
While it may be possible to proceed with both options for a specific foreign national, that may not be feasible from an institutional perspective nor from a cost perspective. When advising clients between these two options, it may be helpful to consider the following considerations:
“Which is faster” is certainly a frequently asked question; “it depends” is usually the answer.
One of the factors that makes special handling “special” is that it permits the employer to use the same recruitment documentation that was actually used to hire the beneficiary. Essentially, a copy of the ad that was already placed, a description of the hiring committee’s competitive recruitment process, and a letter from the department chair explaining the basis on which the beneficiary was determined to be the “best candidate” are sufficient for this purpose. There is no requirement to place new or more ads, or in multiple sources, or to interview new candidates; what was done is accepted as good enough. As PERM is considered, that does save on time.
Of course, that’s assuming that there was a qualifying ad in a national professional journal—either one print ad or a 30 day web posting. See Matter of the University of Texas at Brownsville, 2010-PER-00887 (BALCA, JULY 20, 2011). It is also presuming that the beneficiary was selected for the position within the last year or so, as special handling PERM must be filed within 18 months of the “selection date”—the date the search committee decided the beneficiary was the most qualified—not the hiring date or the actual start date. Within that 18 months, the prevailing wage determination must be obtained, the Notice of Filing posted, and 30 days allowed to pass after the Notice comes down. If the 18 month window has come and gone, it is possible to re-recruit and potentially re-select the beneficiary as the most qualified, but that certainly defeats any time savings.
In addition, special handling PERM is still PERM; it is processed through the same queue as all other PERM applications and subject to the same delays and quirks of the PERM system. Given the preparation time for special handling PERM is about 3 – 4 months and the processing times at about 7 months, it may be close to a year before the application is certified and the beneficiary is able to move forward to filing with USCIS. Moreover, special handling PERM will at best be in the EB-2 preference category, and even with the new visa bulletin, there may still be lengthy wait times before Indian and Chinese nationals can file the I-485, adjustment of status.
Institutions of higher education are also eligible to petition in the outstanding researcher/professor (OR/P) category, which completely bypasses PERM and the DOL and eliminates the DOL processing time. Moreover, the OR/P category is EB-1, and as long as EB-1 remains current, it provides beneficiaries with the option to file the I-140 and the I-485 concurrently. In addition, the OR/P category is eligible for premium processing, meaning the beneficiary may have an answer—at least in terms of the I-140—in two weeks! This is often an important consideration for beneficiaries hesitant to file concurrently with the adjustment of status, but anxious for an employment and/or advance parole document for themselves or for dependent family members.
Clearly, OR/P has the potential to be a much quicker process—both because of the faster adjudication time and because it is EB-1. Nevertheless, OR/P is a document intensive petition in which the beneficiary must be shown to be internationally recognized as outstanding. Even strong cases may be slow in coming together, as the beneficiary collects and organizes the relevant evidence. As opposed to the PERM process—in which the beneficiary may not be involved—the OR/P requires the beneficiary’s active collaboration. This is in and of itself an important consideration that should be discussed with the beneficiary at the outset.
Again, special handling PERM is still PERM, and the familiar rules of PERM still apply. In terms of costs, all fees and expenses associated with the preparation and filing of the application must be paid by the employer. This may be a make or break factor, as some institutions may not agree to pay any fees—in fact, there are a number that refuse to do PERM, while others handle the PERM process completely in-house. If the institution is amenable to paying the fees and to supporting the process, the special handling PERM may be more economical than the OR/P, particularly if the beneficiary would otherwise be responsible for the full legal fee.
And again, special handling PERM is still PERM. The beneficiary must have met the requirements for the job prior to starting the position. For example, this issue often arises if the ad indicated that a Ph.D. was required, but the beneficiary was permitted to start the position before actually completing the Ph.D. Not only must the beneficiary qualify for the position, but the position must qualify for special handling. Special handling is only available to college or university teachers, not to all faculty and staff. However, the teaching component does not need to be a major part of the position. In fact, in Mercer University, BALCA 2011-PER-00162 (March 6, 2012) it was held that a librarian who was not responsible for any specific course, but was engaged in instructional activities as part of the public service team, qualified for special handling. The extent to which the position involves instructing post-docs, medical residents and fellows, teaching physical education/coaching, is an important factor in determining if the position may qualify under special handling.
Qualifying as an outstanding researcher or professor requires an entirely different analysis—one that involves more subjective factors. With special handling PERM, if the job requires a Ph.D. in Chemistry, and the beneficiary had a Ph.D. in Chemistry prior to starting the job—it can be a very straightforward process. There are a few objective factors that must be established in the OR/P category—the offered position must be “permanent” and the beneficiary must have three years teaching or research experience in the field prior to filing. Even these seemingly clear requirements have their quirks; there is an entire memo on the subject of permanent—“Guidance on the Requirement of a ‘Permanent Offer of Employment’ for Outstanding Professors and Researchers” (June 6, 2006). In addition, experience gained while working towards an advance degree may not be counted as part of the three years, except that it can be—as long as the research was recognized as outstanding. If a beneficiary is otherwise eligible for the OR/P category within three years of earning the degree, it’s more likely than not because their graduate research was outstanding.
In the OR/P context nothing is black and white. While 8 CFR § 204.5(i)(3)(i) establishes that two of the delineated six regulatory criteria must be met in order to qualify as outstanding, anyone who practices in this area knows that it can be a challenge to get USCIS to agree that a publication is a publication. USCIS’ Policy Memo (PM), “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions, PM-602-0005 (December 22, 2010)” further muddles the picture. It was this memo that introduced the now notorious “final merits analysis” into the adjudication process. In the final merits analysis, the adjudicator evaluates whether—notwithstanding having met the requisite number of regulatory criteria—the evidence evaluated cumulatively establishes that the beneficiary is, in fact, outstanding. It does not get more subjective than that.