There is an 18-month deadline to file the PERM application in order to qualify for special handling. Therefore, it is important to know when the clock on this deadline starts to run. Things become complicated when an employer misses this deadline. 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.
When does the clock start?The clock of the 18-month deadline starts when the teacher is selected for the position. Many academic institutions will recruit well in advance before employment begins and higher on academic year basis. Therefore, the teacher may only be actually working in the position for a short time before the deadline expires, since the clock started well before the teacher started working.
The academic institution employer should maintain documentation of the date the teacher was selected for the position in the form a copy of the offer letter. Even in a situation where a candidate was actually selected a significant time before the offer letter, if the offer was made conditional upon acceptance by the employer’s governing body, this supports the position that the employer’s selection was conditional and not official until the governing body confirmed it. The employment offer may also be considered to be conditional if it was made contingent upon the teacher’s H-1B approval.
Timing considerations when posting the notice of filingThe 18-month deadline should be taken into account when posting the required notice of filing (NOF). The NOF must be posted for 10 consecutive business days in a place where US workers can readily see it on their way to or from the workplace. Note that this period is actually 14 days including weekends. The posting must be completed between 30 and 180 days before filing the PERM. Therefore, if there are not enough days left until the 18-month deadline will be reached and the posting has not yet started, it will not be possible for the employer to complete the NOF posting requirement in time to file the PERM application.
It is recommended for the employer to post the NOF as soon as possible, provided the PERM will be ready to file within 180 days after posting is complete, and provided the job definition is unlikely to change before filing the PERM. Failing to file the PERM within 180 days will require posting a new NOF. A change in the job definition may require a new prevailing wage determination and require posting of a new NOF. It is important to take care of these issues early to avoid running up against the 18-month deadline.
What if the deadline has passed?Once the deadline has passed and a special handling PERM has not been filed, under normal PERM processing, the best-qualified candidate standard may still be available, provided the basic PERM recruitment process is conducted, which consists of two print advertisements, a job bank posting, and other steps. The employer may also have a second chance by re-recruiting the position. These issues are the subject of our next article. 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.