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International Student and Scholar Services

Faculty

 

Faculty Labor Certification – Faculty Cases


The special procedures for faculty cases require the employer demonstrate it has selected the candidate by means of a competitive recruitment process through which the foreign national was determined to be better qualified than any US worker applicant interested and available for the position.  The employer must also show that the recruitment included an advertisement for the position published at least one time in a print version of a national professional journal or online in connection with a national professional journal for 30 days.  The paperwork must be filed within 18 months of the date the foreign national was selected for the position (note the date of the selection/offer triggers the filing deadline, not the faculty member’s employment start date). 

  1. Cases Eligible for “Special Procedures”
  • To qualify for “special procedures” the following criteria must be met.
    1. The Department must have placed either (1) a print ad (e.g., in the “Chronicle of Higher Education” or in a national professional journal); or (2) an electronic advertisement associated with 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 electronic ads.
      1. The natureof the electronic publication as well as the language used in the ad is likely to be scrutinized by the U.S. Department of Labor (DOL).
      2. Job search websites such as higheredjobs may be problematic because the website is not associated with a national professional journal
  • Association websites are likely to be less problematic ifthe association also publishes a separate professional journal but the DOL could potentially find association websites to be unacceptable. 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, including the city and state.
  1. 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 preferred requirements listed in an advertisement will be deemed the minimum requirements.  Therefore, if a foreign national is selected, we will have to prove that the individual meets all advertised requirements, including preferences. 
  2. The electronic or web-based journal’s job listings must be viewable to the public without payment of subscription and/or membership charges. 
  3. If not also appearing in print, an electronic posting for the job opportunity 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
  1. 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 on the offer letter. To meet the filing deadlines, the employee and Department should initiate a case no later than one year after the date the faculty member was first offered the job.
  • 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) pay the legal fees and other costs associated with labor certification, without reimbursement by the employee.  The employee can pay for the other petitions that are filed for permanent residency (including costs associated with any dependents), but cannot pay for the costs of the labor certification.
  • All labor certification cases must be prepared and filed by Judy Bordeau, Bordeau Immigration Law, LLC, who has been authorized by the University to file these cases on its behalf. See http://www.k-state.edu/isss/permanentresidency/attorneys.html for her contact information.  To ensure there is enough time to prepare and file a case before the deadline, THE ATTORNEY SHOULD BE RETAINED NO LATER THAN 12 MONTHS AFTER THE INITIAL OFFER WAS MADE TO THE EMPLOYEE.  
  1. Case No Eligible for “Special Procedures”

If the case does not meet the criteria for filing under “special procedures because the 18-month deadline was missed or advertisements were not placed in an acceptable place, then a new recruitment must be initiated.

  • When a Department elects to do new recruitment for an employee with classroom teaching duties, the Department has two options. (1)  Conduct a new national recruitment, and file through “special procedures” or (2) 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 Judy Bordeau, Bordeau Immigration Law, LLC. See http://www.k-state.edu/isss/permanentresidency/attorneys.html  for her contact information.  
  • The qualifications of the foreign national employee need to be reviewed against the qualifications of any applicants. The Search Committee must determine that the foreign national is better qualified based on the selection criteria than any of the available US workers are in order to file the Labor Certification case.  
  • If new recruitment is initiated, 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 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 has not 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 “open” for purposes of conducting the required recruitment for labor certification, and allows the foreign national to re-apply during the recruitment period.  
  • It is not necessary to inform the Human Capital Services Talent Acquisition that the recruitment is for a labor certification case; however, if the Human Capital Services Talent Acquisition 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 Human Capital Services Talent Acquisition will review search documents to ensure that:
    1. The job announcement and ad must contain a complete description of the vacancy, including job responsibilities, duties and minimum qualifications (education, training and experience)
    2. 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
    3. Any experience gained while working at the University cannot be used to create an artificial minimum qualification barrier for otherwise qualified candidates; however, experience gained in a different position may be utilized in the job description, if legitimate.
    4. The hiring department invites all of the candidates who might be minimally qualified to determine whether an interview is warranted.
    5. Because the advertisement text for the labor certification case should only list required (not preferred) skills and the labor certification process has numerous technical requirements, no job announcements should be placed for this purpose without working with Judy Bordeau.

These guidelines have been approved by the Office of General Counsel and the Human Capital Services Talent Acquisition, 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.