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BALCA PROVIDES GUIDANCE ON PERM APPLICATIONS FOR COLLEGE OR UNIVERSITY PROFESSORS

The PERM regulations provide for separate requirements for filing a PERM application for college or university professors. For these positions, there are additional mandatory recruitment steps. However, until now, there has been no definition as to what constitutes a college or university professor. In the case titled In the Matter of Mercer University, the employer filed a PERM application for the position of Instructional Coordinator. The job description included:

Participate in all aspects of library reference services, including instruction activities, liaison to academic departments, and collection development.Participate in planning, implementation, and evaluation of library services. University and community service.

The employer used the recruiting steps for college or university professors as detailed in the regulations. The Department of Labor (DOL) denied the PERM application without the opportunity to provide additional documents solely on the ground that the job opportunity did not qualify for filing as a college or university teacher. Specifically, the reviewing officer stated that the job description, “does not include teaching job duties, and therefore, the job opportunity does not appear to be that of a college or university teacher.” The officer went on to state, “the principal duties described are not those involved in teaching, evaluating and advising students within an assigned instructor workload in a classroom setting. ” A cite to the regulations was included, but the cited regulation provides no definition of “college or university teacher.” The employer responded stating,

there has never been any requirement that an individual perform only teaching duties in order to qualify as a college or university teacher… Indeed, such a requirement would disqualify nearly all faculty members at U.S. colleges and universities, as research and community service are almost universally required for contemporary faculty positions.

The Board of Alien Labor Certification Appeals (BALCA) found this argument persuasive. BALCA found that the definition adopted by the DOL officer was unsupported, arbitrary, and unpersuasive. BALCA stated that the job duties and the additional documents showing the employee’s work, which would have been provided had the DOL issued an audit rather than an outright denial, showed a number of teaching activities. The job description itself referred to “instruction activities.” Lacking a statutory definition or regulatory, therefore, the DOL was required to approve the PERM application as a college or university teacher, rather than applying its own definition.


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