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Overview
The Special Handling Re-recruitment path to PR is used when the position has teaching duties but there was either no search conducted or the original search didn’t meet the Department of Labor’s criteria. To use this path, a full search for the employee’s position will need to be conducted. The job must be advertised again, the UT employee must be in the pool of applicants, and he/she must receive a new job offer letter. If the current UT employee is the best candidate, then the permanent residency process can continue. It is important to note that the UT employee can only be considered better than the other candidates based on his/her qualifications at the original time of hire with UT. Otherwise, the Department of Labor would argue that a US citizen could be “trained” for the position. If a US citizen or permanent resident applies and is more qualified than the UT employee, then the permanent residency and search processes would stop. The employee would not lose his/her position.
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The costs related to preparing and filing form I-485 may be paid by either the employee or by the hiring department. The university may not pay any costs associated with applications filed for dependents of the employee. Costs for dependents of the employee must be paid by the employee.
Regulatory Background
The following regulations form the basis of Special Handling Re-recruitment policy at the University of Tennessee.
Under section 212(a)(5)(A) of the Immigration and Nationality Act (INA or Act) (8 U.S.C. 1182(a)(5)(A)), certain aliens may not obtain immigrant visas for entrance into the United States in order to engage in permanent employment unless the Secretary of Labor has first certified to the Secretary of State and to the Secretary of Homeland Security that:
(1) There are not sufficient United States workers who are able, willing, qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work; and
(2) The employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed.
The employer may recruit for college and university teachers under § 656.17 or must be able to document the alien 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.