In 1998 before the promulgation of the current PERM regulations, The Board of Alien Labor Certification Appeals (BALCA) issued an en banc decision in FRANCIS KELLOGG, 1994-INA-465 and 544, 1995-INA 68 (BALCA Feb. 2, 1998) (en banc). Kellogg involved three applications denied by the Certifying Officer (CO) on the ground that an alternative job requirement was unduly restrictive in violation of the pre-PERM 20 C.F.R. § 656.21(b)(2).
(2) The employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements:
(i) The job opportunity’s requirements, unless adequately documented as arising from business necessity:
- (A) Shall be those normally required for the job in the United States;
- (B) Shall be those defined for the job in Dictionary of Occupational Title(D.O.T.) including those for subclasses of jobs;
- (C) Shall not include requirements for a language other than English.
pre-PERM 20 C.F.R. § 656.21(b)(2)
In all three cases, foreign nationals did not possess the primary job requirements and qualified for the job only on the basis of the alternate requirements. In all three cases, BALCA panels had initially reversed the CO’s denial because they found the alternate requirements had the effect of expanding the pool of qualified applicants, and so were not unduly restrictive.
The first case, Kellogg seeking a live-in cook, required two years of experience in the job offered or two years experience as a live-in housekeeper with cooking experience. BALCA determined that, While the position of “housekeeper with cooking duties” does have the component of some cooking experience, it is not substantially equivalent to full-time experience as a cook with respect to whether an applicant has the ability to perform the duties of the job offered (cook) in a reasonable manner, because cooking experience gained during 2 years as a housekeeper is less than the cooking experience gained during 2 years as a cook.
The second case, Winner’s Circle seeking an Italian Specialty Cook, required two years experience in the job offered (Foreign Specialty Cook), or two years experience as a sad maker. BALCA determined again that employer did not state the actual minimum requirements because duties of Salad Maker compared to duties of Cook, Specialty, Foreign Food10, indicate they are not substantially equivalent to each other with respect to whether an applicant is able to perform the job duties in a reasonable manner.
The third case, North Central seeking a Nutritionist, required a Bachelor of Science degree in Nutrition or an M.D. in Medicine, and one year experience in the job offered or one year experience in a “Medical Occupation” The CO noted disbelief that an M.D. would want a job as a Nutritionist. In addition, the CO found that Employer has failed to explain how the alternative requirement of an M.D. in Medicine with one year experience in a medical occupation correlated with a position as a Nutritionist, pointing out that experience in radiology or ophthalmology would fit Employer’s description of its job requirement. BALCA concluded that the job requirements had been tailored to the alien’s qualifications because the job had not been offered to applicants who have comparable qualifications for the position of Nutritionist.
The three cases illustrated a situation were, an employer lists primary requirements in compliance (that are normally required for the job), but then includes alternate job requirements that mirror the foreign national’s qualifications. BALCA stated “Permitting an employer to advertise with qualifications greater than that possessed by the alien, but allowing the alien to qualify with lesser qualifications which are listed in the guise of “alternate” qualifications, is a violation …………… Thus, we hold that any job requirements, including alternative requirements, listed by an employer on the ETA Form 750A must be read together as the employer’s stated minimum requirements which, unless adequately documented as arising from business necessity, shall be those normally required for the job in the United States….” BALCA concluded that alternative requirements must be substantially equivalent to each other with respect to the ability to perform the job duties of the position. BALCA was concerned that where a foreign national only qualifies on the basis of the alternate requirements, there may be other suitable combinations of education, training or experience which could qualify an applicant to perform the job, but which have not been listed as acceptable alternatives, raising the issue of whether alternative requirements are unlawfully tailored to the foreign national. Therefore, BALCA held that where the alien does not meet the primary job requirements, but only potentially qualifies for the job because the employer has chosen to list alternative job requirements, the employer’s alternative requirements are unlawfully tailored to the alien’s qualifications, in violation of regulations, unless the employer has indicated that applicants with any suitable combination of education, training or experience are acceptable.
In 2005, the current PERM regulations came into effect. The DOL had initially proposed to eliminate the use of alternate experience requirements but were persuaded by the majority of commenters that there may be legitimate instances when alternative job requirements, including experience in a related occupation, can and should be permitted in the permanent labor certification process. Within the current regulations, the DOL implemented Kellogg by creating 20 CFR §656.17(h)(4) (i) and (ii) which state:
(i) Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought; and
(ii) If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer‘s alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.
If the foreign worker national only qualifies based on alternate requirements, the regulation requires the employer to write on the application that “any suitable combination of education, training or experience would be acceptable” but there is no place on the form that clearly indicates where this statement should be included. In Matter of Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009) BALCA determined that because the existing Form 9089 does not reasonably accommodate an employer’s ability to express the attestation (Kellogg statement), it would offend fundamental due process to deny an application for failure to write the attestation on the Form 9089.
Is it safe to not include the language required by regulation in reliance on Matter of Federal Insurance? For now, DOL appears to be following it, but consider the following about Matter of Federal Insurance:
1. It is not an en-banc decision, and DOL is under no statutory or regulatory mandate to follow it. Unless a BALCA decision is en banc, another decision with a contrary or distinguishing holding could be issued at any time. The APA generally requires notice and comment rulemaking, to overrule a regulation
2. In it BALCA stated that because the regulation did not require employers to inform U.S. applicants of flexibility in qualifying for the job, there was no explanation of why it is essential for the language to appear on the Form 9089, other than to act as an attestation by the employer that it had followed the Kellogg requirement.
3. BALCA focused on the fact that DOL had not provided adequate notice on where on the form to place the Kellogg language because the only place where advice about where to place the language, was found on an AILA website positing of an AILA-DOL liaison meeting minutes. it should be noted that if DOL provides adequate notice in an FAQ or on a new form, this basis for the decision will no longer exist.
4.Based on Subhashini Software Solutions, 2007-PER-43, 44 and 46 (Dec. 18, 2007), (which had applied HealthAmerica, 2006-PER-1 (July 18, 2006) (en banc)) determined a denial for failure to divine the CO’s intent that the employer be creative in writing the Kellogg language on a form that is not designed to receive it elevates form over substance, and exhibits a loss of perspective of the relative weight of the offense compared to the consequences to the petitioning employer. It should be noted that Health America has since been effectively overruled by promulgation of 20 C.F.R. § 656.11(b). See Sushi Shogun, 2011-PER-2677 (May 28, 2013).
In Matter of Agma Systems, LLC , 2009-PER-00132 (Aug. 06, 2009) the employer sought a software engineer and required a masters degree in Computer Science or Engineering and three years of experience in Computer Software Developing and/or Consulting — and listed an alternate combination of education and experience of a Bachelor’s Degree in Computer Science or Engineering and five years of experience in Computer Software Developing and/or Consulting. BALCA determined that these requirements were substantially equivalent and that the employer did not have a primary requirement even though the form 9089 forced the employer to list one of the combinations of requirements on the form as primary, the employer essentially had two sets of requirements that are essentially the same, and because there is no primary requirement, the regulatory requirement for the Kellogg language was not triggered. 20 CFR §656.17(h)(4) (i) requires alternate experience requirements in all cases to be substantially equivalent while 20 CFR §656.17(h)(4) (ii ) still requires the Kellogg language. This indicates that alternate experience requirements being substantially equivalent is not a basis per the regulations to not include the Kellogg language. So what is the basis of Agma Systems? Notably, 20 CFR §656.17(h)(4) (i) requires alternate experience requirements rather than an alternate combination of education & experience requirements to be equivalent. In Agma systems both the individual alternate set of requirements, required: 1. experience in the identical occupation ( it was the number of years of experience that varied) 2. education in the identical field (it was level of the degree that varied) and 3. The required number of years of SVP of both alternate combinations were identical. Is the basis of Agma Systems that because the alternate requirements were not just substantially equivalent, but were identical in occupation experience was required in, the field education was required in and the combined required SVP years, they were identical requirements rather than primary and alternate requirements. Would a difference in any of one of the three criteria (occupation, educational field or combined years of SVP) have resulted in the Kellogg language being required? Note Agma Systems is not an en banc decision.
What incentive exists to not use the Kellogg language?
The Board has held that where an employer’s job requirements are not unduly restrictive, a U.S. applicant who does not satisfy all the job requirements is not qualified for the position, and may lawfully be rejected Concurrent Computer Corp., 88-INA-76 (August 19, 1988) (en banc). Where the U.S. applicant clearly does not meet a stated job requirement, the burden shifts to the CO to explain adequately why the U.S. applicant is qualified through a combination of education, training or experience, despite his or her failure to meet the stated requirement. Houston Music Institute, Inc., 19-INA-450 (Feb. 21, 1991); See Mindcraft Software, Inc., 19- INA-328 (Oct. 2, 1991); Hina Textiles, Inc., 19-INA-82 (July 15, 1991); External Resources International, Inc., 19-INA-32 (Apr. 19, 1991); Shakti Engineering & Design Group, 19-INA-347 (Nov. 2, 1990). An applicant, whose resume shows he or she clearly does not meet the minimum requirements for the job, maybe rejected without further investigation. Adry-Mart, Inc,. 88-INA-243 (Feb. 1, 1989) (en banc). If a U.S. applicant’s resume does not expressly state qualifications for all of an employer’s job requirements but lists such a broad range of experience that there is a reasonable possibility the applicant may meet the job requirements, it is incumbent on the Employer to further investigate the U.S. applicant’s qualifications, either through an interview or by other means because the burden is on the employer to demonstrate that the resume alone shows that there is no reasonable possibility that an applicant meets the job requirements. Gorchev & Gorchev Graphic Design, 89-INA-118 (Nov. 29, 1990) (en banc). BALCA panels have held that including the Kellogg language that employer would “accept any suitable combination of education, training, or experience.” triggers a duty to investigate the applicant’s ability to perform the job, beyond a mere determination of if the applicant possesses the minimum requirements listed on the application. see Matter of Kennametal, Inc., 2010-PER-01512 (Mar. 27, 2012); Matter of Goldman Sachs & Co., 2011-PER-01064 (June 8, 2012); and Matter of Select International, Inc, 2011-PER- 04178 (Sept. 19, 2012). It appears that when the Kellogg language is included on the application the employer is unable to shift the burden to the CO based on the fact that an applicant does not have the minimum requirements explicitly listed on the application and a heavy burden remains on the employer to demonstrate why an applicant’s particular combination of education, experience and/or training does not make the applicant qualified to perform the job adequately within a reasonable period of the on the job training.
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