Because of their unique skill sets and recruitment process, college and university faculty members oftentimes can benefit from a shortened immigration process compared to other industry position holders. For example, senior faculty members or other scientific staffers of universities and colleges may qualify and apply for immigration as an EB-1 extraordinary ability alien or as an outstanding researcher or professor or through the EB-2 advanced degree under national interest. These two categories do not require the filing of a highly complicated, confused, and lengthy labor certification process and are desirable. However, these categories themselves are conditioned upon the highest standards, and therefore junior faculty members may not qualify for these options. There is still some good news, however. Those college and university teachers, who cannot avoid the labor certification requirements, may still utilize a shortened version of Labor Certification - commonly known as "Special Handling".

What is Special about Special Handling?

The special handling procedures provide for a more limited test of the labor market than the basic labor certification process. While under the basic process the employer must offer a job to any U.S. applicant who is even minimally qualified, under the Special Handling process the employer can choose the best-qualified candidate.

As well, depending on the thoroughness of the actual recruitment and selection process at the university or college that has already taken place before offering the faculty position, the results of the past recruitment can be used. However, the application must be filed no later than 18 months after the date the job was officially offered to a foreign national. Please note that once 18 months have passed, faculty positions are subject to the same arduous labor certification process, with a ‘minimum objective’ standard – i.e., even if the alien is the most qualified, other U.S. applicants cannot be rejected as long as they meet the minimum requirements for the position.

For this reason, it is recommended that the permanent residence process be discussed with a qualifying immigration attorney in detail as soon as or at the time the offer of employment is made.

Who Qualifies?

As stated, Special Handling procedures are limited to college and university teachers or researchers who are involved with classroom teaching. To qualify, colleges or universities must admit high school graduates, be recognized by the federal or state government as an institution of higher learning, and provide bachelor’s degrees or higher or offer courses which can be used as credit to such a degree (thus, programs offering associate degrees such as community or junior colleges are acceptable).

Once again, professors and other faculty members qualify if they engage in classroom teaching; positions involving strictly research or other non-teaching duties do not qualify for special handling.

Three Steps to Green Card:

Once the foreign national’s eligibility and the course of action have been established, an application for labor certification must be filed by the employer.The application must be submitted with a detailed report describing the competitive recruitment,

1. A copy of at least one advertisement in a national professional journal, an in-house posting, and copies of appointment papers, among other items. Please note that recruitment efforts associated with the labor certification process have heightened standards and may be stricter than the university’s normal procedures. In order to avoid repeating the recruitment process, universities and colleges that recruit foreign nationals should discuss their recruitment process with an immigration attorney to ensure that their efforts are acceptable under DOL standards should they decide to indefinitely hire their foreign faculty members.
2. Once the labor certification is approved, an Immigrant Petition (Form I-140) has to be filed with U.S. Citizen and Immigration Services (USCIS). At this time, the foreign employee must prove that s/he is qualified for the job, holds the appropriate degrees, and has the required experience as described in the Labor Certification application.
3. Finally, the foreign national and his/her dependent family members can either file an application for adjustment of status (Form I-485) with USCIS concurrently with the Form I-140 or for an immigrant visa at a U.S. consular post abroad after the approval of I-140. For issues related to the choice between these two, please refer to my article, “Adjustment of Status vs. Consular Processing”. Upon completion of these three steps, permanent resident status will be given.

Conclusion

Although more convenient and realistic, even Special Handling cases must go through three steps to obtain permanent residence, which is a detailed and time consuming process. Both the university and the foreign faculty member must realize that failure to act within a reasonable period of time may jeopardize the foreign employee's ability to obtain permanent residency and, therefore, to continue uninterrupted employment. Too many times, both parties wait too long without a realization that nonimmigrant status is not a permanent solution. Without taking appropriate steps at an early stage, these universities and colleges risk losing valuable international faculty members when their nonimmigrant status expires. Thus, it is extremely important to begin the permanent residency process as soon as possible after the faculty appointment is approved.
The information contained in article is provided for general information only and should not serve as a substitute for legal advice.