College PERMs in Jeopardy

The chaos currently prevailing at the National Prevailing Wage Center (NPWC) threatens to undermine the Special Handling framework that governs PERMs filed by Institutes of Higher Education.  “Special Handling” is the term of art given to the regulatory scheme which allows colleges who have advertised and already recruited a faculty member pursuant to a “competitive recruitment process” to file a PERM and begin the process of Lawful Permanent Residency sponsorship for that individual, without having to re-advertise and go through the cumbersome recruitment process to which all other organizations are subject.  Provided that at least one advertisement for the original position was placed in a “National Professional Journal” (eg., The Chronicle of Higher Education), the college can file a PERM without re-advertising.  However, in order to take advantage of this provision, the regulations require that the PERM be filed within 18 months of the employees “selection date” (typically considered to be the date on the original Offer Letter).  Moreover, the Employer is still subject to many of the remaining regulatory constraints, including the requirement that it obtain a Prevailing Wage Determination from the NPWC before filing.

With PERM Prevailing Wages currently taking anything upward of 4 months, colleges would be well advised to make the decision on sponsorship as soon as possible for those faculty membership that were hired for this academic year if they want to avoid re-advertising and re-recruiting.  It is likely that many of those individuals received Offer Letters as far back as January 2011.  This means that the window to file Special Handling PERMs will begin to close in July 2012.  That may seem like its still far off.  Given my experience representing colleges, however, and the time that it typically takes for such decisions to be made and then communicated to the Legal Affairs office, this deadline is actually just around the corner.

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