Optional special selection and recruitment green cards: Who is a college or university teacher?

Transcription

1 SEPTEMBER 19, 2012 Optional special selection and recruitment green cards: Who is a college or university teacher? By Patrice B. Morrison James Cho, a citizen of South Korea, manages the basic chemistry labs at X College, with responsibility for instructing students in proper techniques and lab safety. Sara Minsk, a native of Russia with Canadian citizenship, works as a librarian at Y University s Medical School, where she helps students to learn advanced computer research techniques. Otto Sears, a British citizen with a kinesiology background, is head coach of the women s soccer team at Z University; he implements specialized training to decrease the incidence of knee and other injuries to the team as well as to those students playing on the university s recreational teams. All three foreign nationals are temporarily working in the United States as faculty appointees, in H- 1B or TN visa status. Their employers are facing the longer-term issue of obtaining permanent resident status ( green card ) for them in order to retain their services for the indefinite future. None are teaching faculty in the most commonly understood sense; they are not involved in traditional classroom teaching or in the research and publication activities of traditional faculty. Are they considered teachers by the U.S. Department of Labor? Are they eligible for Optional Special Recruitment and Selection labor certifications? A recent BALCA case may have changed the answer from No to Yes. In March, the Board of Alien Labor Certification Appeals ( BALCA, the appellate arm of the Department of Labor charged with making final agency determinations) decided Matter of Mercer University, 2011-PER (BALCA, March 6, 2012), which considered whether a university librarian should be included in the definition of teacher. Given the job duties and instructional activities required of the librarian, BALCA took the opportunity to expand the definition of teacher. This decision provides a basis for colleges and universities to sponsor new categories of foreign national employees for green cards using favorable processes and standards. Institutions of higher education have long struggled with the unique problems presented by their foreign national faculty members: how to obtain U.S. permanent resident status for them to ensure that they can live and work in the United States indefinitely and without restrictions. Colleges and universities undertake exhaustive searches for new faculty, often resulting in the hire of outstanding

2 non-u.s. citizens as teaching faculty. A faculty member may begin the new job using a temporary, or nonimmigrant, status such as H-1B or TN. But a few short years later, the institution is forced to confront the fact that this valuable faculty member s nonimmigrant status will not allow him or her to remain at the college or university indefinitely. To the dismay of the faculty member, the status may foreclose the possibility of tenure consideration. Outstanding Professors and Researchers (EB-1) There are several options available to foreign national college and university faculty members seeking a green card. More senior faculty members may be able to qualify as Outstanding Professor/Researchers if they can demonstrate international recognition as outstanding in the particular academic field. The Outstanding Professor/Researcher category requires a substantial amount of documentation of outstanding ability and accomplishments, which most junior faculty members cannot provide. This first employment-based category ( EB-1 ) does not require labor certification, i.e., a demonstration to the U.S. Department of Labor that there is no minimally qualified U.S. worker available for the position. National Interest Waivers (EB-2) Some faculty members with advanced degrees may still be able to qualify for a waiver of the labor certification requirement if they can demonstrate that their permanent resident status would be in the national interest. However, this EB-2 category has been so substantially narrowed in recent years by U.S. Citizenship and Immigration Services ( USCIS ) decisions that as a practical matter it is available to very few professors and researchers. Labor Certifications For faculty members who cannot qualify as Outstanding Professor/Researchers or as eligible for a national interest waiver, the educational institution will be required to submit an approved labor certification with its petition for permanent residence. For non-teaching positions, the institution is required to demonstrate that there is no minimally qualified U.S. worker available, by following a recruitment process mandated by the Department of Labor s basic Program Electronic Review Management ( PERM ) labor certification process. That process requires two print advertisements, a state job bank/job order posting, and three of the additional recruitment steps approved by the Department of Labor of the institution s choosing (e.g., job fairs, the employer s website, placement agencies, professional organizations, local newspaper, etc.). During the basic labor certification process, the employer reviews the credentials of the applicants and determines which, if any, appear to meet the minimum requirements for the position. The initial screening is normally followed by interviews of the potentially qualified candidates to confirm their credentials and experience. If during the basic labor certification process it appears that there is even one U.S. worker who meets the minimum qualifications for the position, the labor certification application will not be approved by the Department of Labor, and the petition for permanent residence cannot be filed. While the educational institution is not required to fire the foreign national employee and hire a U.S. worker who has been identified as minimally qualified, this route to a green card for the foreign national 2

3 employee is no longer available. Depending on the state of the job market in a given geographic location at the time of the recruitment process, it may be impossible to obtain approval of a basic labor certification application for a particular position. The Best Qualified Candidate Fortunately, in the case of college and university teaching faculty, there is another option available that provides more certainty than the basic PERM labor certification process as well as a more reasonable standard by which to evaluate candidates. In 1976, Congress was persuaded that the rigid application of the labor certification program, as it then existed, was detrimental to the efforts of colleges and universities to acquire outstanding educators or faculty members. The resulting amendment to Section 212(a) (14) of the Immigration and Nationality Act substantially changed the standard of review for teachers in higher education. A labor certification for these cases could be denied by the Department of Labor only if equally qualified U.S. workers were available for the position. For the next 30 years, colleges and universities were able to obtain labor certification where the foreign national faculty member was deemed by a competitive recruitment and selection process to be the best qualified candidate of those who had applied. This standard for review is quite beneficial to the college or university, because as long as the foreign national faculty member is shown to be more qualified than any U.S. worker who applied for the position, the U. S. applicants for eligible teaching positions can be rejected even if they meet the minimum requirements for the position. Optional Special Recruitment Under PERM there is an option known as Optional Special Recruitment and Selection Labor Certification, available only to institutions of higher education. It was designed to expedite labor certifications for teaching faculty, using the very favorable better qualified standard. Timing is critical for Special Recruitment. A college or university can use the Optional Special Recruitment procedure only if it files the labor certification application within 18 months after the date on which the foreign national candidate was selected for the teaching position. In most cases, the governing date will be the date of the offer letter to the foreign national candidate at the conclusion of the competitive recruitment and selection process. Special Recruitment requires a single advertisement to be placed by the college or university in a national professional journal, together with documentation of all other recruitment sources, if any, used by the institution. An employer may use an electronic ad for this purpose, as long as the ad remains posted for a minimum of 30 days. An ad, whether print or electronic, must contain the job title, job duties, and requirements, but need not contain the employer s name or the location of the job. Governing regulations specify what must be included as documentation of the competitive recruitment and selection process used by the institution, as well as a notice requirement. Strict compliance with these provisions is essential to a successful Optional Special Recruitment case. 3

4 After the 18-Month Window Closes What if the university misses the 18-month filing period? All is not lost. If the Special Recruitment deadline passes, the university can still pursue a basic labor certification for the foreign national faculty member, although arguably with some disadvantages. There will be financial and time costs associated with the new recruitment process and the more comprehensive ad requirements of the basic PERM recruitment process. There is the risk that an equally or better qualified U.S. worker will appear as a candidate, making it impossible to pursue the DOL filing. The institution must also consider its own internal recruitment processes to make sure that its standards are maintained. Once the basic PERM recruitment steps have been completed, the college or university can apply the special selection standard to all candidates, as long as the position involves teaching. U.S. candidates who are less qualified than the foreign national can be rejected. Who Qualifies as a Teacher? The Optional Special Recruitment and Selection process can be so favorable to colleges and universities and the basic process so unfavorable that the expansion of the definition of those for whom it can be used seems inevitable. Absent a clear definition of teacher, in either the governing statute or the regulations, BALCA recently decided a case that may open numerous doors for foreign nationals employed by colleges and universities. In Matter of Mercer University, BALCA considered whether a university librarian should be included in the definition of teacher. In that case, the Certifying Officer denied the Optional Special Recruitment PERM application of Mercer University on behalf of an Instructional Coordinator, stating that the position was not eligible for Optional Special Recruitment because the position was not a teaching position. After receiving additional documentation from the employer, the Certifying Officer forwarded the case to BALCA for review. The University in its Statement of Position elaborated on its argument, asserting that the Certifying Officer relied on an inaccurate definition of teaching and highlighting the teaching elements in the job duties. Interestingly, the Certifying Officer did not file a Statement of Position brief. BALCA found that the job title of Instructional Coordinator, the requirement of a degree in Library Science, and evidence of a faculty appointment, taken together with job duties that included instruction activities, brought this position within the ambit of university teacher. The facts strongly support this finding: The job description includes the job duty of providing effective teaching in the library instruction program as part of the public services team (emphasis added by BALCA). It also requires the qualifications of demonstrating enthusiasm for teaching and fluency with technologies especially as they relate to instruction. Finally, it listed the preferred qualification of experience leading instructional activities. Mercer, at page 4. Little or no actual classroom teaching, which had been thought to be an essential requirement, was involved in this case. But by acknowledging that teaching activities can occur in other environments, including one-on-one instruction, BALCA has arguably expanded the definition to include numerous other positions that involve instruction at the college level. A lab instructor, a medical librarian, and a 4

5 soccer coach at institutions of higher education all teach, and may be the future beneficiaries of the Mercer decision. Patrice B. Morrison and Courtney H. New previously authored a longer article on this subject entitled Optional Special Selection and Recruitment Green Cards: Who Is a 'Teacher'?, first published in the New York Law Journal on August 6, This is an original excerpt from that article. For further information, please contact your Nixon Peabody attorney or a member of our Immigration team: Patrice B. Morrison, Esq., at or pmorrison@nixonpeabody.com Courtney H. New, Esq., at or cnew@nixonpeabody.com Christine Sackett, Esq., at or csackett@nixonpeabody.com Elaine M. Dixon at or edixon@nixonpeabody.com Elizabeth H. James at or ehjames@nixonpeabody.com Mary-Benham Nygren at or mnygren@nixonpeabody.com 5