Sponsoring faculty for permanent residence: PERM special handling & other considerations

This blog post was co-authored by Aaron Blumberg, Partner & Attorney at Fragomen, and Andrea Huerta-Rodriguez, Associate at Fragomen.

Colleges and universities can hire international employees as professors and/or researchers by sponsoring them for permanent residence in the US. There is a special immigration pathway for teaching positions. Fragomen experts have explained exactly how higher education employers can sponsor faculty for permanent residence.

Green card basics

Permanent residents are immigrants who come to the US permanently. They are also referred to as green card holders. They have the same rights as a US citizen except they cannot vote and can only sponsor certain family members. Spouses and unmarried children under 21 can be included as dependents in the green card application. Check out Interstride’s blog for more info on family sponsorship options.

The green card pathways are:

• Family
• Work
• Diversity lottery
• Asylum

This blog will focus on work (or employment-based) green cards. However, international employees can file multiple green card applications simultaneously, which means they could potentially file a family-based application and an employment-based one or have two employment-based applications filed under different categories at the same time because the processing times may be quicker for one than another.

Employers can file and sponsor international employees for current or future employment. Processing times for green cards are based on country of birth (not country of citizenship). There is a limit on how many green cards are given out each year to people in each country. Visit the USCIS Visa Bulletin for current processing times. These are only released on a monthly basis.

The recommended pathway to a green card is via an H-1B first. However, this is not required—just highly recommended. There is also no requirement to be present within the US physically or for a certain period of time. Green cards must be renewed every ten years. Permanent residents can also apply to become US citizens after 3-5 years. Lastly, green cards can be taken away in rare circumstances, such as criminal issues.

Types of employment-based green cards for faculty

There are a total of five employment-based green cards in the US, but we will focus only on the ones that are relevant for higher education employers.

EB-1A: Persons of Exceptional Ability

The EB-1A green card is similar to the O-1 temporary visa but more stringent with a higher standard to prove. It is difficult to get approved for an EB-1A. The employee must show they are top of their field and are internationally recognized for their “exceptional” contributions/accomplishments, which is established by meeting 3-of-10 criteria. This category can be self-petitioned, which means the employee can pursue this on their own and employer sponsorship is not required. This makes the EB-1A a good option for post-docs in temporary positions.

EB-1B: Outstanding Professor or Researcher

EB-1B is specifically for professors and researchers. It is slightly easier to get approval for than EB-1A, but it’s still not an easy category. However, the processing is faster than EB-2 and EB-3 green cards for those born in India and China.

To qualify for an EB-1B green card:

• The candidate’s work must be internationally recognized as an “outstanding professor or researcher”.
• The candidate must have at least 3 years of relevant teaching or research experience.
• The candidate must meet 2-of-6 criteria.
• The sponsorship must be for a full-time permanent tenure-track teaching position or comparable, permanent research position.

EB-2: Professional Positions That Require an Advanced Degree

The EB-2 green card is for positions that require an advanced degree (master’s degree or higher) or a bachelor’s degree with 5 years of post-baccalaureate relevant experience. The focus of this green card category is on the position’s requirements—not the international employee’s degree/qualifications. For example, you cannot sponsor an international employee for an EB-2 green card for a job that doesn’t require a degree—even if the employee has a master’s degree.

When you apply to sponsor an international employee for a teaching position, you will use Special Handling PERM. This process has a higher acceptance rate and faster processing times than a Regular PERM case. All non-teaching positions under EB-2 require the Regular PERM process unless filing under the National Interest Waiver (NIW) category, which is a completely separate process.

The EB-2 NIW is for those with exceptional ability or an advanced degree, whose professional endeavors or activities will benefit the United States. No labor certification is required for an NIW, which means faster processing. International employees can also self-petition for an NIW, so employer sponsorship is not required. Like the EB-1A, this is a good option for STEM PhDs, postdocs in temporary positions, or other professionals without permanent job offers.

EB-3: Skilled Workers and Professionals

EB-3 is for jobs that require only a bachelor’s, associate, or experience only. This category is less common for professors since most faculty positions require an advanced degree. In the case that EB-3 is used, the Regular PERM process is required for all non-teaching positions, and Special Handling PERM is required for teaching positions.

What is PERM?

Most university faculty positions have to go through the PERM Labor Certification Process. PERM does not stand for permanent residence; PERM stands for, “Program Electronic Review Management,” which is also known as “Labor Certification”. PERM is the first-of-three steps of the green card process for certain types of employment-based green cards.

PERM Labor Certification is filed by the employer with the US Department of Labor (DOL) through the PERM online system. Regardless of whether the Regular or PERM Special Handling is required, the PERM labor certification application must still be submitted and approved before an I-140 (Step 2) green card petition can be filed. For green cards that do not require PERM, including EB-1 and EB-2 NIW, the first step will be to file the I-140 green card petition.

PERM special handling for teaching positions

Special Handling PERM is exclusively for college and university professors, lecturers, and/or those with teaching duties. This “modified” PERM process was statutorily created to help universities attract the best teachers, and in turn, help attract the best students. Special Handling simplifies the PERM process to make it easier for universities. It also has a higher approval rate than regular PERM.

To qualify for PERM Special Handling, employers must show that the applicant is “more qualified” than any US applicant (i.e., US Citizen or Lawful Permanent Resident). This standard is subjective in this case. The employer can use the international employee’s publications, experience, rank, teaching style, etc. to prove they are more qualified.

The job offer must be for a full-time, permanent position. It does not need to be for a tenure-track position. The position must include teaching duties; however, the DOL uses a broad definition of teaching. Positions that may qualify for PERM Special Handling include librarians who teach faculty and students how to use library resources and advisors who teach in some way as part of their role. In other words, any position with some teaching component may qualify for PERM Special Handling.

Lastly, the employer must maintain a PERM Compliance report, which summarizes the recruitment process and provides justification for why the international employee was the best person for the position. If the case is randomly audited, you must be prepared to submit:

• A copy of the prevailing wage determination previously obtained for the case
• Notice of filing that was posted for at least 10 business days
• A recruitment statement explaining why the foreign national is more qualified than all the US workers who applied, if any
• The offer letter to the applicant
• A qualifications statement explaining the international employee’s educational and professional qualifications
• At least one ad posted in a national professional journal

The ad you submit can be the original ad used for the job opening as long as it meets these requirements:

• If online, must be posted for at least 30 days and not behind a paywall
• Must be run within 18 months of the offer letter being issued – If you miss the deadline, you must run another ad and reissue a new offer letter in accordance with those new recruitment efforts.
• Ad must include job duties, requirements, and how to apply
• Should not include a salary or salary but if you do, make sure it meets or exceeds the prevailing wage. (You may also want to consider adding other language in lieu of the salary/salary range, such as “Will be discussed with the applicant.”)

Regular PERM for non-teaching positions

The Regular PERM process is used to sponsor international employees for all other professional positions, including non-teaching positions at colleges and universities in the United States. The sponsorship must be for a full-time, permanent position. The Regular PERM process is similar to Special Handling but requires six ads rather than one. The employer must also show there are no other minimally qualified US workers (i.e., US Citizens or Lawful Permanent Residents) who are ready, willing, and able to accept the job offer.

Standard PERM

Green card steps after PERM

After the PERM process is complete (i.e., received Labor Certification from the DOL), there are two more steps (I-140 and I-485) needed to complete the employment-based green card application process. As mentioned above, if you are applying for an EB-1 or EB-2 NIW, you will skip labor certification and start directly with Step 2 (I-140).

Step 2: I-140 Immigration Petition

• Employer files Form I-140 with USCIS
• Employer shows that international employee meets the requirements for the job
• Employer shows that they can pay the required salary for the position

Step 3: Adjustment of Status (AOS)

• Form I-485 filed with USCIS if the international employee is within the United States. If not, the application process will proceed via consular processing abroad
• International employee’s eligibility for a green card is confirmed, including work history, family history, criminal record, etc.

Check the employment-based visa bulletin to see when to file (i.e., when Priority Date (“PD”) is currently (or becomes) current). The PD is the date you filed the first part of the green card application, which will either be the PERM or the I-140. Employers cannot file the I-485 unless/until the PD becomes current for the appropriate category under which you are filing the green card (i.e., EB-1, EB-2, EB-3, etc.)

Green card application process timeline and costs

The PD, the type of green card, and your country of birth determine how long it will likely take to obtain your green card. Some people will not have any wait times. People born in India or China will likely have longer wait times.

Average wait times based on country of birth

PDs are updated/released once a month on the Visa Bulletin. Once your PD is current, AOS or consular processing takes approximately 6 – 24 months. The Regular PERM process takes 17 – 21 months, on average, for all three steps. USCIS’s processing times for Form I-140 is approximately 4 – 8 months. Premium Processing is available only for Form I-140, for an extra fee of $2,500. PPS expedites USCIS’s processing of the I-140 filed under EB-1 or EB-2 within 15 calendar days. For EB-2 NIWs, PPS expedites USCIS’s processing within 45 days.

Overall, green card processing times vary significantly every year, so these are just averages based on what we are seeing now.

The employer must pay all costs associated with PERM – legal fees and advertising fees. There is no filing fee involved with the PERM Process at this time. Fees for all other steps (I-140 & I-485) of the green card process, including application fees, can be paid by the employee, the employer, or both.

Get expert guidance on sponsoring faculty

Sponsoring faculty members with teaching duties for US Permanent Residence uses a specific system called, PERM Special Handling. This is a modified PERM process that makes it easier for higher education employers to hire international employees for teaching positions while still protecting US citizens and the economy. Fragomen’s attorneys are experts in US Immigration Law—specifically, US Business Immigration Law—and can lead you through the process, complete and file paperwork on your behalf, and provide guidance or strategize with you on unique situations so that you can hire and/or retain the best faculty from around the world.