For faculty members with classroom teaching duties, the employer must only show that the foreign national is better qualified than any US worker applicants. There are two ways to pursue labor certification--either through “special procedures” or through “normal procedures”, discussed below.
The special procedures for faculty cases require the employer to demonstrate that it has selected the candidate by means of a competitive recruitment process through which the foreign national was determined to be the best qualified available applicant for the position. The employer must also show that an advertisement for the position was published in a national professional journal to recruit workers for the position. The paperwork must be filed within 18 months that the foreign national was selected for the position.
KSU Guidelines for Faculty Labor Certification Cases
(1) A college or university may sponsor a foreign national employee for labor certification under “special procedures” if the employee has classroom teaching duties, there was a competitive national search for the position, and the foreign national was considered to be better qualified than available and interested US worker applicants. The university does not need to conduct a new recruitment where a case meets the criteria for “special procedures”.
(2) To qualify for “special procedures” the following criteria must be met.
(a) The Department must have placed a print (e.g., The Chronicle of Higher Education) or an electronic advertisement in a national professional journal as part of the recruitment process leading to the hiring of the foreign national employee. Note the following important information with regard to the new provisions allowing electronic ads.
- a. The nature of the electronic publication as well as the languageused in the ad is likely to be scrutinized by the U.S. Department of Labor (DOL).
i. Job websites such as www.higheredjobs are likely to be problematic because a job website is not a national professional journal.
ii. Association websites are likely to be less problematic if the association also publishes a separate professional journal, but the DOL still could potentially find association websites to be unacceptable.
iii. Electronic recruitment often instructs applicants to apply online and, in so doing, may neglect to list the city and state where the job is located. The regulations require that advertisements specify the location of the job. Be sure to include the city and state.
iv. The Board of Alien Labor Certification Appeals (BALCA) has held that an employer may not advertise preferences in recruitment used for faculty /special labor certification cases. Any requirements listed in an advertisement will be deemed to be minimum requirements. Therefore, if a foreign national is selected, we will have to prove that the individual meets all advertised requirements, including preferences.
- b. The electronic or web-based journal’s job listings must be viewable to the public without payment of subscription and/or membership charges.
- c. The job opportunity for which certification is sought must be posted for at least 30 calendar days on the journal’s website. Documentation of the placement of an advertisement in an electronic or web-based national professional journal must include evidence of the start and end dates of the advertisement placement and the text of the advertisement.
(b) The labor certification must be filed within 18 months of the date the employee was selected for the position. Please note that if there is no clear evidence of an earlier selection date, the Department of Labor relies on the date the offer letter was sent to the foreign national employee.
(3) Kansas State University, at the discretion of the academic department, will sponsor employees in good standing who qualify for labor certification under “special procedures”. Please note that Department of Labor regulations require the employer (i.e. Department) to pay for the legal fees and other costs of the labor certification case, without reimbursement by the employee. The employee can pay for the other petitions that are filed for permanent residency, but cannot pay for the costs of the labor certification case.
(4) All labor certification cases must be prepared and filed by attorneys who are authorized by the University to file cases on its behalf. For a list of approved attorneys, see http://www.k-state.edu/isss/permanentresidency/attorneys.html. TO MAKE SURE THAT THERE IS ENOUGH TIME TO PREPARE AND FILE A CASE BEFORE THE DEADLINE, THE ATTORNEY SHOULD BE RETAINED NO LATER THAN 14 MONTHS AFTER THE INITIAL OFFER WAS MADE TO THE EMPLOYEE.
(5) If the case does not meet the criteria for filing under “special procedures” (i.e. advertisements were placed in a national journal or the 18 month filing deadline has passed), then either a new recruitment must be done, or the position is not filled, at the discretion of the Department.
(6) Where a Department elects to do new recruitment for an employee with classroom teaching duties, the Department may elect to do a new national recruitment, and file through “special procedures”, or the Department may conduct a series of local recruitment efforts, including two Sunday newspaper ads and a series of other recruitment steps, and file through “normal procedures” (see http://www.k-state.edu/isss/permanentresidency/non-faculty.html). Please note that “normal procedures” require more recruitment efforts than “special procedures”; however, the recruitment is local rather than national in scope and will often draw fewer applicants. The Department should discuss the best option with the attorney retained to handle the case.
(7) If new recruitment is done under either “special procedures” or “normal procedures”, the recruitment needs to be bona fide. If the department chooses to conduct a new recruitment, the department shall pay the attorney retained to handle the case an additional $200. The attorney shall seek, with no further charge to the department, a separate review and opinion from another KSU-approved immigration attorney to ensure that the new recruitment does not create an improper preference for the employee seeking permanent residency.
The qualifications of the foreign national employee need to be reviewed against the qualifications of any applicants, and the Search Committee needs to determine that the foreign national is better qualified based on their selection criteria than any of the available US workers in order to file the Labor Certification case.
If new recruitment is done, the university’s policy is that the advertising needs to be coordinated with the contract renewal period (i.e. it needs to occur BEFORE the contract is renewed). For example, if the contract ends on June 30 and renewal would likely occur on July 1, then a labor certification case should be opened approximately 4-5 months in advance. This allows ample time to prepare the case, and also allows the recruitment to take place approximately 60 days before the contract renewal date. The reason for timing the recruitment in this fashion is that the university considers the position “open” if the contract is up for renewal but hasn’t been renewed. For the university to consider a “regular” appointment to be “open”, the foreign national employee seeking labor certification sponsorship needs to either resign from the position, or request that his or her contract be converted to a “term” contract. This action is necessary for the university to consider the position to be “open” for purposes of conducting the required recruitment for labor certification, and also allows the foreign national to re-apply during the recruitment period.
(8) It is not necessary to inform the Office of Affirmative Action that the recruitment is for a labor certification case; however, if the Office of Affirmative Action asks why the advertisement is phrased a certain way, or will be placed in a certain publication, then the needs of the labor certification case can certainly be discussed. The Office of Affirmative Action will review search documents to ensure that:
- The job announcement and ad must contain a complete description of the vacancy, including job responsibilities, duties and minimum qualifications (education, training and experience)
- The minimum qualifications must be those required to perform the duties and responsibilities and are not tailored to the desired foreign worker’s qualifications, are not unduly restrictive, and only include restrictive requirements that are necessary for satisfactory job performance
- Any experience gained while working at the University is not used to create an artificial minimum qualification barrier for otherwise qualified candidates
- The hiring department invites all of the candidates who appear to meet the position requirements to interview for the position.
(9) Because the advertisement text for the labor certification case should only list required, and not preferred skills, applicants should be instructed to contact the Departmental HR Representative for additional details regarding the position so that the HR Representative can get them the complete position description upon request (this is common, anyway, for KSU advertisements, which are usually shorter than the actual position description and usually have the HR Representative’s e-mail address for additional details).
These guidelines have been approved by the Office of General Counsel and the Office of Affirmative Action, with input from International Student and Scholar Services and outside counsel. Other universities or employers may have different criteria; however, we believe these guidelines are most consistent with the university’s internal hiring practices and our Affirmative Action policies.