PERM and H-1Bs: Hot Topics for Colleges and Universities

Recent developments in the H-1B category and the new PERM "green card" process have raised questions from colleges and universities regarding foreign faculty and other H-1B professionals. This update will respond to the most common questions regarding these developments.

We have heard that the USCIS began accepting H-1B petitions on April 1 for the next fiscal year, which begins on October 1. As a college or university, we may need to consider foreign candidates for certain faculty openings. Should we be worried about the H-1B cap?

No. Institutions of higher education are exempt from the H-1B cap. Background: U.S. Citizenship and Immigration Services (USCIS) is currently limited to granting 65,000 new H-1B approvals per year. Certain types of H-1B petitions are not subject to the cap, including petitions filed by institutions of higher education, petitions to change the employment of a foreign national who is already in H-1B status, and petitions to extend H-1B status. Therefore, colleges and universities are able to make hiring decisions without worrying about the H-1B cap. By comparison, employers that are subject to the H-1B cap must plan ahead and take action quickly in order to file all cap-subject petitions before the cap for fiscal year 2006 is reached.

We have heard about new H-1B filing fees. Do the new filing fees apply to us?

Yes and no. In December 2004, the USCIS began to require a $1,500 "Training Fee" for most H-1B petitions, in addition to the standard $185 H-1B filing fee. Institutions of higher education are exempt from the Training Fee.

In March 2005, the USCIS introduced a $500 "Fraud Fee" for initial H-1B petitions. There is no exemption from the $500 Fraud Fee, so colleges and universities must pay the Fraud Fee for all initial H-1B petitions. The Fraud Fee does not apply to petitions to extend H-1B status.

We filed a labor certification application (Form ETA-750) on behalf of a foreign professor last year, but we have received no news on the application. What is the reason for the delay?

In early 2005, the Department of Labor (DOL) established two Backlog Reduction Centers (BRCs), located in Philadelphia and Dallas. All labor certification applications, including Reduction in Recruitment (RIR) applications and Special Handling applications, have been forwarded to one of the BRCs. As the BRCs receive the applications, they will send a letter to the employer asking if the employer wishes to continue processing the case. The employer will have 45 days to respond to the letter. The BRCs anticipate that it will take the entire summer to perform data entry on all of the newly received cases; and the BRCs will then begin processing the cases. The BRCs will begin with the oldest unprocessed cases. The DOL expects the BRCs to complete their work within two years, at which time they will be closed. The BRCs have not yet released specific processing time information. The DOL provides general updates and processing information on its web site.

What is the PERM program?

The PERM labor certification program was implemented by the DOL on March 28, 2005. All labor certification applications must now comply with the PERM regulations issued on December 27, 2004. The PERM program requires employers to register on the DOL's online system, and the application form must be completed electronically. PERM requires advertising to test the labor market to confirm that there are no qualified and available U.S. workers. In certain respects, PERM's procedures are more rigorous than under the previous labor certification system. Under PERM's standard recruitment procedures, for example, an employer must post a notice of a job opening on the state job bank for 30 days; and then must wait at least 30 days (but not more than 180 days) before filing the PERM application.

Since PERM was implemented on March 28, 2005, employers and attorneys across the country have reported a high rate of denials for PERM applications. The DOL's statements that PERM applications would be processed and approved in 45 to 60 days resulted in widespread interest and optimism on how the new electronic filing system would work. Employers and foreign national employees should instead expect, based upon what has been seen so far, that they may encounter technical problems in the completion and submission of the application form and that PERM applications will be subjected to intense scrutiny. Employers with pending pre-PERM cases should be cautious about seeking a conversion to a new PERM application until more is known about how the PERM program will be administered.

Does the concept of "Special Handling" for college professors exist under PERM?

Yes. PERM outlines "optional special recruitment procedures" for college and university professors, which must include one advertisement in a national professional journal and a signed statement by an official with actual hiring authority detailing all recruitment efforts. The statement must include, among other information, a detailed summary of recruitment results explaining why the foreign national is more qualified than each of the U.S. applicants who applied for the position. If a college or university wishes to use the special recruitment procedures, the PERM application must be filed within 18 months after the selection of the foreign candidate for the position. The PERM application form contains questions that must be filled out completely and accurately in order to qualify the special recruitment procedures.