In a recent decision, Matter of Mercer University, the Board of Alien Labor Certification Appeals (BALCA) – the Department of Labor’s appeal body – adopted a flexible approach to determining who qualifies for optional special recruitment. This type of recruitment under the PERM regulations can be performed when an employer is preparing to file a labor certification for an employee qualifying as a “college or university teacher,” and is completed under the different standard of having to demonstrate that the foreign national on whose behalf the labor certification is being filed, was the “best qualified” of all the candidates.
BALCA reviewed this case after it was by the Certifying Officer because he did not believe that the position in question, a librarian position titled “Instructional Coordinator,” included teaching responsibilities. Specifically, in the decision denying the Application for Permanent Labor Certification , the certifying officer found that “the principal duties described [were] not those involved in teaching, evaluating and advising students within an assigned instructor workload in a classroom setting.” Mercer University, however, argued that its requirement that the instructional coordinator “participate in instruction activities” clearly referred to “college and university teaching” job duties needing to be performed in this position. Additionally, Mercer University argued that there has never been a requirement setting forth the minimum amount of teaching duties to be performed in order for the position to qualify for optional special recruitment under the PERM regulations.
BALCA reviewed the job duties of the position, as well as the documentation prepared by Mercer University prior to the filing of the Application for Permanent Labor Certification. Upon completing this review, BALCA found that the responsibilities of teaching were clearly reflected in the job duties of the position as well as the employer’s education and experience requirements, and that the documentation contained in the labor certification file clearly described the foreign national as having teaching responsibilities. Finally, BALCA agreed with the employer and stressed that the regulations lack any requirements of “special definitions” to describe the position or duties of college or university teacher. BALCA further noted that the Application for Permanent Labor Certification clearly set forth that teaching responsibilities were part of the job duties of the Instructional Coordinator with Mercer University. In so finding, BALCA reaffirmed the long held belief of institutions of higher education, and immigration law practitioners, that in order to qualify for optional special recruitment under the regulation, the position must involve any amount of teaching with a college or university.