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EB-2 Special Handling

Law Offices of Yu & Associates


What Is EB-2 Special Handling?

College and university professors applying for an EB-2 employment-based visa (Advanced Degree Professionals) use a slightly different process than other EB-2 applicants. Although a job offer and labor certification are required for EB-2 Special Handling applications, there are less recruitment requirements for Special Handling applications. Rather than demonstrating that there are no qualified U.S. workers available to do the job, the employer must show that the foreign applicant was selected through a competitive process that showed him or her to be more qualified than available U.S. workers.

Who is Eligible for EB-2 Special Handling?

In order to qualify for Special Handling, the applicant must have been selected for a tenured or tenure track teaching position at an accredited institution of higher education through a competitive selection process. Researchers do not qualify; the employment offer must be in a teaching position. The recruitment process must be thoroughly documented in order to meet the requirements for Labor Certification.

How Do I Submit an EB-2 Special Handling Petition?

The EB-2 special handling petition should be filed on behalf of the applicant by his or her prospective employer. Before filing with U.S. Citizenship and Immigration Services, the employer must first obtain employment certification for the applicant, and then submit the immigration visa petition with USCIS.

What Are the Differences Between Regular EB-2 Cases and EB-2 Special Handling Cases?

For regular EB-2 employment-based petitions, the employer must demonstrate that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. Normally, if a minimally qualified U.S. worker can be found to take the offered position, then the labor certification for the alien applicant will be denied.

Special Handling cases are different in that the employer does not need to show that there are no qualified U.S. workers, but that the alien is more qualified than available U.S. workers. Labor certification is still required for EB-2 Special Handling petitions, however.

What Documentation is Needed for EB-2 Special Handling Cases?

The employer must demonstrate that the foreign applicant was selected for the job opportunity in a competitive recruitment and selection process through which the alien was found to be more qualified than any of the United States workers who applied for the job. To do so, the employer must submit the following with the application:

  1. A statement, signed by an official who has actual hiring authority from the employer outlining in detail the complete recruitment procedures undertaken, which must include the total number of applicants for the job opportunity and the specific lawful job-related reasons why the alien is more qualified than each U.S. worker who applied for the job;
  2. A final report of the faculty, student, and/or administrative body making the recommendation or selection of the alien, at the completion of the competitive recruitment and selection process;
  3. A copy of at least one advertisement for the job opportunity placed in a national professional journal, giving the name and the date(s) of publication; and which states the job title, duties, and requirements;
  4. Evidence of all other recruitment sources utilized; and
  5. A written statement attesting to the degree of the alien's educational or professional qualifications and academic achievements.

Does a Prevailing Wage Determination Need to be Obtained for Special Handling Cases?

Yes. The employer must offer a wage that is at least the average wage paid to similarly employed workers in the requested occupation in the area of intended employment. This is called the prevailing wage. The employer obtains the prevailing wage determination by requesting it from the State Workforce Agency in the area.

What Is the Deadline for Submitting a Special Handling Application?

For a college or university professor, the Application for Permanent Employment Certification, namely, Labor Certification, must be submitted within 18 months after the selection is made. The application will describe in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the prospective immigrant's qualifications.

How Long Should the Employer Retain All Documentation Relating to the Case?

Five years from the date the application was filed by the employer.

What Remedies Are Available In Case of Denial of the Labor Certification Application?

If the employment certification application is denied and the employer believes it was due to a system error or misjudgment of the part of a DOL officer, the employer can file a motion to reconsider with the DOL process center that made the decision or file an appeal with the Board of Appeal of Labor Certification Application (BALCA). This must be done within 30 days of the date of denial.

What Will Happen if the DOL Certifying Officer Orders Supervised Recruitment?

If the DOL Certifying Officer (CO) orders supervised recruitment, then the employer must undertake recruiting again under the supervision of the CO. The employer will be required to place an ad in a newspaper of general circulation for three days including a Sunday or for one edition of a professional, trade or ethic publication. The ad must be approved by the CO and must direct applicants to send resumes or applications directly to the CO. Other recruiting efforts may also be required. The employer must then submit a detailed recruitment report within 30 days of the COs request.

What Are the Advantages and Disadvantages of EB-2 Special Handling?

Special Handling is relatively simple for the applicant, as the employer does most of the filing and the application does not require as much documentation as some other petitions, such as NIW. However, since an advertisement in a professional journal is required as part of the recruiting process, if the employer did not use one, then it is not possible to apply under Special Handling (but it may still be possible to apply under regular PERM, NIW or EB-1). Also, as an employment-based petition, a successful Special Handling application requires the cooperation of the employer to collect all the needed documentation.

 

The above is intended as a general introduction and should not be construed as legal advice or legal opinion for your particular case. Please contact the Law Offices of Yu & Associates with any specific questions. Tel: (301) 838-8986, Email: syu@yulegal.com, Address: 110 N Washington St., Suite 328E, Rockville, MD 20850.



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