Anomalies: Special Handling or Processing
The PERM Rule identifies specific rule anomalies as exceptions to basic recruitment requirements, including direct filing with USCIS with PERM processing exemptions, special handling of College and University Teachers, expeditious intervention for professional athletes, National Interest Waivers, and truncated notice recruitments for Domestic Household Workers.
The PERM rule in 20 CFR §656.16 offers exemptions from labor certification for foreign nationals who have been employed legally as nonimmigrant sheepherders for at least 33 of the preceding 36 months. Those who do not qualify for the PERM waiver may apply through the normal process outlined in 20 CFR §656.17.
College and University Teachers
Colleges or Universities are permitted to use a competitive recruitment and selection process through which the alien may be found to be more qualified than any of the United States workers who applied for the job. Recruitment and Advertising must occur no more than 18 months from the time the selection is made. This type of application known as special handling is optional, since applicants may also apply through the basic process described in Sec. 656.17.
The Immigration and Nationality Act defines who may qualify as a Professional Athlete and allows them to change employers during any point in the labor certification process. The PERM rule also uses special wage criteria for professional athletes in place of the usual prevailing wage rules.
Schedule A Groups I and II
Schedule A applications may be filed without recruitment for occupations in short supply. A completed application for labor certification, ETA Form 9089, supporting documents and Form I-140 must be filed with the DHS, which has the responsibility to determine the validity of the Perm application. Schedule A Consists of the Following Groups: (I) Physical Therapists & Professional Nurses (II) Sciences and Arts & Performing Arts
National Interest Waivers (NIW)
PERM processing is not required for a National Interest Waiver. The petitioner must file an I-140 petition directly with DHS, along with a Department of Labor form (either ETA 750 Part B or 9089 Parts J & K) and documentation to show that the skills of the foreign national are of such a unique level that labor certification processing is not in the national interest. An important new decision was issued in December, 2016, Matter of Dhanasar, partially overturning the three-prong test set forth in NYSDOT (New York State Department of Transportation).
Domestic Household Workers
PERM applications for domestic household workers must follow special instructions to document the alien’s previous experience as a domestic worker for at least 12 months, so that there will be a likelihood that the alien will continue to work in the profession after entering the United States. The requirement to post a Notice of Filing is waived if there is only one domestic position in the household.