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PERM Special Handling: What to Do If You Miss the 18 Month Deadline

Missing 18 month deadline to file the special handling PERM is not the end of the world. An employer may still have other options available. If you have questions about the PERM special handling process and would like to consult with an attorney, contact The Law Firm of Shihab & Associates. We have over 50 years of combined legal experience in a wide variety of complex and immigration law matters.

Filing a normal PERM without special handling

If the 18 month deadline to file for special handling has passed, the employer may file a basic application without receiving special handling. Even when the application is filed without special handling, the employer still gets the benefit of the best-qualified candidate standard. Under normal PERM processing, if a qualified US candidate applies for the same position during PERM recruitment, that US candidate cannot be rejected if he or she meets the minimum standards required for the job position. Yet, if the position is for a teacher at an institute of higher education, the employer can reject a US applicant even when he or she meets the minimum standards of the position provided that the foreign national teacher has better qualifications than the US applicant. The standard still applies for the normal PERM as well.

Re-recruiting the position using special handling

It may be possible for the employer to re-recruit a teacher’s position after the 18 month deadline has passed, and then file a special handling PERM application based upon the second re-recruitment of the position rather than the first recruitment. Accomplishing this successfully requires careful attention.

There are several things to consider. Re-recruiting the position runs the risk that a better qualified US applicant might apply for the possession, which would prevent the PERM from being approved. There may be a contractual issue if the employer requires the teacher to accept the risk and step down if a better qualified US candidate emerges. If the employer rejects a US applicant, it should be prepared to establish that the foreign national beneficiary is better qualified for the position. A US applicant who was not selected may complain to the Office of Special Counsel and may file an action against the employer for citizenship discrimination under the Immigration and Nationality Act.

The teacher’s acceptance of this risk may violate his or her teaching contract if the person is on a tenure-track position. However, a teacher may prefer special handling and wave the contract’s tenure provision. Although the teacher has already been selected for the position, the employer should document the new selection by preparing a new appointment letter. The employing institution and the teacher can waive the acceptance of the prior selection with a signed statement.

Petition for EB-1b

If the teacher is in a tenure-track position, has published one or more professional journal articles, and meets the other criteria of being “outstanding,” the person may qualify for the employment-based immigrant EB-1b as an outstanding professor or researcher. A PERM application is not required for the EB-1 since it does not require labor certification. To learn more about the EB-1 for outstanding professors and researchers, this category is explained in greater detail in other articles on our website. If you would like further information about the PERM special handling process or any other immigration matter, please contact our immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA to schedule a consultation with an attorney at an office near you.

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