On February 20, 2009, the Board of Alien Labor Certification Appeals (BALCA) vacated a Certifying Officer’s (CO) denial of labor certification based on missing Kellogg language and ordered the CO to grant certification.
The employer had filed an application in 2006 for alien employment certification. The position’s primary educational requirement was a bachelor’s degree in economics. Alternatively, the employer indicated on the Employer and Training Administration (ETA) Form 9089 that it would accept equivalent experience measured by one year for each academic year. The alien did not possess the primary educational requirement, but qualified for the position by virtue of the alternative experience requirement. The CO, however, denied the employer’s application on the ground that it violated BALCA’s decision in Kellogg because the employer’s Form 9089 did not explicitly state that “any suitable combination of education, training or experience” would be acceptable.
In Kellogg, BALCA held that where the alien only qualified for the job because the employer has chosen to list alternative job requirements, the employer’s alternative requirements are considered to be unlawfully tailored to the alien’s qualifications, unless the employer has indicated that applicants with any “suitable combination of education, training or experience” are acceptable.
In this appeal, BALCA had to decide whether the employer’s application should be denied because the employer did not write on the application that “any suitable combination of education, training or experience” would be acceptable. BALCA recognized that the regulations explicitly require an employer to use the Kellogg language where it applies. BALCA also agreed with the CO that what the employer wrote in Section H-8 on its Form 9089—“equivalent experience in lieu of education”—was not the substantive equivalent of the Kellogg language. BALCA, however, held that the employer could not be faulted for not writing the Kellogg language on the Form because there was no designated place on the form to do so. Therefore, BALCA vacated the CO’s denial and ordered the CO to grant certification because the ETA’s deficient form and failure to post readily accessible clarifying instructions violated fundamental due process.