Tag Archive for: Kellogg Magic Language

Cyrus Mehta

Kellogg Has Reared its Ugly Head in the New Labor Certification Form: How Do We Deal with Alternate Requirements?

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By Cyrus D. Mehta and Kaitlyn Box*

Our most recent blog in this series discusses the new Application for Permanent Employment Certification, Form ETA 9089 (“ETA 9089”) and corresponding Application for Prevailing Wage Determination, Form ETA 9141 (“ETA 9141”) promulgated by the Department of Labor (DOL), and, specifically, how issues concerning dual representation and familial relationships can be dealt with on the new form. In this blog, we discuss how to handle alternate requirements in the new ETA 9089.

The Office of Foreign Labor Certification (OFLC) of the DOL has now delayed the implementation of the new ETA 9089 until June 1, 2023. The new form was originally scheduled to go into effect on May 16, 2023. OFLC will continue accepting the older version of form ETA 9089 until June 1, 2023. Significantly, the new ETA 9141 will link to the new ETA 9089, automatically populating certain fields on the PERM application form. Watermarked versions of both new forms are available on the DOL website. This functionality of the new form has introduced uncertainty for practitioners, who must now ensure that information, specifically that pertaining to alternative requirements, is listed on the ETA 9141 in such a way that it will be correctly incorporated into the ETA 9089 as well.

The new ETA 9089 has undergone formatting changes, as well. The new form appears to change the way employers must list alternative requirements and specifically incorporate the Kellogg “magic language”.  The controlling guidance on alternative requirements comes from the Board of Alien Labor Certification Appeals (BALCA)’s decision in Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998). As discussed in a prior blog, Kellogg held that employers should indicate that they will accept “any suitable combination of education, training or experience” if the primary and alternate requirements for the position are not “substantially equivalent”. 20 CFR §656.17(h)(4)(ii) broadened the holding of Kellogg to apply whenever there are alternate requirements, providing as follows:

“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.”

However, in Matter of Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009), BALCA held that there is no appropriate place on the ETA 9089 to include the Kellogg language, so an employer’s failure to do so should not be a basis for denial of the PERM application.

As the holding of Federal Insurance suggests, the old ETA 9089 was not well formatted to incorporate the Kellogg language. Box H.6 of the old ETA 9089 asks “Is experience in the job offered required for the job?”. Box H.10 then asks “Is experience in the alternate occupation acceptable?” If the employer answered both H.6 and H.10, it would likely trigger the requirement to state the Kellogg language.  Many employers chose to avoid stating the Kellogg language on the form by answering “no” to  question H.6. Instead, one could respond “yes” to box H.10., which asked “Is experience in an alternate occupation acceptable?” This approach resulted in the alternate requirement listed in H.10 becoming the primary requirement. Because Box H.6 was answered “no”, there was only one requirement in H.10 rather than a primary and alternate requirement. However, this approach became irrelevant after Federal Insurance was decided on February 20, 2009, although employers still attempted to only have a primary requirement just in case the DOL revived the Kellogg language.

Take the example of  a Systems Engineer with the following job duties and requirements:

Conduct project execution in a global delivery model using various methodologies like Agile to deliver projects in enterprise applications space. Utilize Oracle Peoplesoft HCM, SCM and CRM, SaaS, and cloud based software like Salesforce. Conduct architecture, analysis, design, development, customization, and maintenance of applications using PeopleSoft, Salesforce Cloud, Data analytics tools like Tableau, PL/SQL, SQL, Oracle, HP Quality Centre, Rally, ServiceNow along with testing, application packaging, release co-ordination, security administration and product management from ideation to delivery of the product.

Reqs: Master’s degree (or equiv) in CompApps, CompSci, Engg (Comp/Mech/Electronic), or related field, plus 3 years of experience in position involving similar duties/technical capabilities.

In this case study, the employer instead of requiring 3 years of experience in the exact duties of the position as offered above has asked for “3 years of experience in a position(s) involving similar duties/technical capabilities.”

The employer will address this in H.10 rather than H.6.  in the existing ETA 9089 by answering “no” to H.6 and “yes” to H.10 – Is experience in an alternate occupation acceptable? Then, by indicating the number of months of experience requirement in the alternate occupations in H.10A and  by referring to H.14 in H.10B that the employer will accept “3 years of experience in a position(s) involving similar duties/technical capabilities.”  Even before Federal Insurance,  by checking only H.10 rather than both H.6 and H.10, the employer could avoid the Kellogg language. However, if an employer chose to answer both H.6 and H.10 from February 20, 2009, the Kellogg language would not trigger because of Federal Insurance.

The new Form ETA 9089, however, appears to rectify the problem identified in Federal Insurance by specifically referencing the Kellogg language. This change could create confusion for employers who are not accustomed to including this language in recruitment or the ETA 9089 itself.

Box G.4. of the new ETA 9089 asks “Is the foreign worker currently working for the employer submitting this application?” An employer who answers “yes” to this question must then indicate in Box G.4.a. “whether the foreign worker only qualifies for the job opportunity by virtue of the employer’s alternative requirements identified in Section F of the ETA 9141 identified in Question E.1”. If the answer to this question is “yes” as well, Box G.4.b. asks the employer to “select the applicable statement describing the employer’s willingness to accept any suitable combination of education, experience, or training”, mirroring the Kellogg “magic language”. The two possible responses to this question are “I accept” or “I do not accept”.

Once the Kellogg magic language is included in the ETA 9089, it will be harder for employers to justify the lawful rejection of US workers. In Matter of Goldman Sachs & Co., 2011-PER-01064 (June. 8, 2012), the employer, indicated on the ETA Form 9089 that it would accept for the position of Financial Analyst, “any suitable combination of education, training and experience,” which was the required Kellogg magic language. During supervised recruitment, the employer submitted an expert opinion to the DOL detailing why thirty-five U.S. worker applicants had each been rejected without interview. As examples, BALCA highlighted one applicant who was rejected despite his “substantial academic business credentials” and because he did not possess “narrowly focused” experience necessary for the position and another applicant who the employer described as having “a long and varied career in accounting and financial reporting” but lacking in certain specific experience. The Certifying Officer (CO) denied the labor certification finding that the employer rejected U.S. workers for other than job related reasons. The CO specifically emphasized that the employer had indicated its willingness to accept “any suitable combination of education, training or experience” and had not taken the time to explore and evaluate the suitability of the applicants’ education, training or experience. The DOL cited 20 C.F.R. § 656.24(a)(2)(b) and stated that “where 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.” In its request for reconsideration, the employer argued, inter alia, that it has no duty to interview candidates who fail to show on their resumes that they satisfy the major job requirements.

BALCA held that the CO did not question the employer’s business necessity for its job requirements, but instead questioned the fact that the employer rejected without interview applicants who appeared facially qualified for the position and did not address how they were unqualified even possessing a combination of education, training and experience. BALCA upheld the CO’s denial and cited Blessed Sacrament School, 96-INA-52, slip op. at 3 (Oct. 29, 1997) which held that where the applicant’s resume shows a broad range of experience, education and training that raises a reasonable possibility that the applicant is qualified even if the resume does not expressly state that he or she meets all the requirements, an employer bears the burden of further investigating the applicant’s credentials. Thus, since the employer was required to evaluate US worker applicants under the Kellogg standard – will accept any suitable combination of education, experience and training – the employer’s rejection of US worker applicants based on only a review of their resumes were not considered to be lawful rejections.

Although the employer has to evaluate candidates who apply for the position under the Kellogg language, this language need not appear in the advertisements as confirmed in the following DOL Round 10 FAQs:

Does the advertisement have to contain the so-called “Kellogg” language where the application requires it to be used on the application?

Where the “Kellogg” language is required by regulation to appear on the application, it is not required to appear in the advertisements used to notify potential applications of the employment opportunity. However, the placement of the language on the application is simply a mechanism to reflect compliance with a substantive, underlying requirement of the program. Therefore, if during an audit or at another point in the review of the application it becomes apparent that one or more U.S. workers with a suitable combination of education, training or experience were rejected, the application will be denied, whether or not the Kellogg language appears in the application.

Still, the fact that the employer has to evaluate resumes in light of any combination of education, training or experience imposed by Kellogg in the new ETA 9089 may make it harder for employers to win labor certifications especially in industries where there have been many layoffs in recent times.

It remains to be seen whether the employer can avoid the Kellogg language like under the old form by making the alternative requirement the primary requirement. Under the revised forms, what is indicated in ETA 9141 will be linked to the ETA 9089. The question is whether under the new system the employer will be able to skip F.c. in ETA 9141, which asks details about the Alternative Job Requirements and instead complete only F.b. in ETA 9141, which asks details about the Minimum Job Requirements but would actually include information about the alternative job requirements.  By skipping F.c. in ETA 9141 (alternative requirements) and completing F.b. (minimum requirements) in ETA 9141, can the employer argue in Appendix C – Supplemental Information that the alternate has become the primary requirement and thus avoid using the Kellogg language?

It is unclear how well the approach of making the alternate requirement the primary will work in light of the “Kellogg language” question on the new ETA 9089. There is a chance that failure to accept the Kellogg question on Box G.4.b. of the new ETA 9089 when alternative sets of qualifications will be accepted, even if F.c. in ETA 9141 was left blank, could result in an audit or denial of the PERM application.

In Agma Systems LLC, 2009-PER-132 (Aug. 6, 2009), BALCA held that an employer was not required to include the Kellogg language where it has two sets of alternative requirements that are substantially equivalent. In Agma, the requirements in question were a Master’s Degree in Computer Science or Engineering and three years of experience in Computer Software Developing and/or Consulting — and a Bachelor’s Degree in Computer Science or Engineering and five years of experience in Computer Software Developing and/or Consulting. Because these two sets of requirements were essentially the same and neither was the “primary”, BALCA reasoned that the Kellogg language need not be invoked because Kellogg expressly recognizes this type of equivalent requirements as acceptable. When requirements are substantially equivalent, BALCA’s holding in Agma lends support for the strategy of making the alternative requirement the primary requirement, thereby obviating the need to use the Kellogg language even in the revised ETA 9089.

The Kellogg language has returned with a vengeance in the new ETA 9089, and it remains to be seen whether employers and their attorneys will be able to avoid it if the alternate requirement can still become the single primary requirement. Employers need to deal with Kellogg with the respect that it deserves in order to avoid a denial.

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

A Trap For The Unwary: Equivalent Degrees And Alternate Requirements In Labor Certification Applications

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When a foreign national has a three year degree instead of a four year degree, or has no degree, and is able to establish an equivalent degree through a combination of education and work experience, or only through work experience, it is important that the PERM labor certification application be carefully drafted. While an equivalent degree might pass muster for an H-1B visa, it will not always for a labor certification and the subsequent I-140 immigrant visa petition.

20 CFR §656.17(h) requires that an alternative requirement must be substantially equivalent to the primary requirement of the job opportunity in a labor certification application. If the foreign national does not meet the primary job requirement, and while already employed by the sponsoring employer, only meets the alternative requirement, the labor certification will be denied unless the application states that any suitable combination of education, training or experience is acceptable (emphasis added). 20 CFR §656.17(h)(4)(ii) essentially adopts the holding of BALCA in Francis Kellogg, 1994-INA-00465, although in that case the primary and alternative requirements, namely, experience as a cook or salad maker, were not substantially equivalent, thereby necessitating that the employer accept any suitable combination of education, training or experience. In contrast to Kellogg, 20 CFR §656.17(h) requires consideration of this language even if there is substantial equivalence between the primary and alternative requirement.

Fortunately, if this language does not appear on the form, it is no longer fatal and practitioners can challenge a denial if the sole reason for the denial was the failure to insert this “magic language” on the application. In Federal Insurance Co., 2008-PER-00037 (BALCA Feb. 20, 2009) the fact that the Kellogg language did not appear on the form could not be a ground for denial as there is no space on the ETA-9089 form for such language; and the Kellogg language also does not need to appear in recruitment materials. BALCA in Federal Insurance held that a denial would offend fundamental fairness and due process under HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006). HealthAmerica is a seminal BALCA decision, which rejected the certifying officer’s (CO) denial of the labor certification based on a typographical error recording a Sunday advertisement on the form, although the employer possessed actual tear sheets of the advertisement. BALCA rejected the CO’s position that no new evidence could be submitted as the advertisement tear sheets were part of the PERM compliance recordkeeping requirement and thus was constructively submitted by the employer.

Notwithstanding the fact that the Kellogg magic language is not required, DOL’s rigid insistence that alternate requirements be substantially similar becomes especially problematic when a position requires the minimum of a bachelor’s degree but the foreign national qualifies based on equivalent work experience. It is important to draft PERM labor certification applications being aware of this pitfall, as well as the advertisements, so as to avoid a denial. Globalnet Management, 2009-PER-00110 (BALCA Aug. 6, 2009) is illustrative of this problem. In Globalnet Management,, BALCA held that a bachelor’s degree plus two years of experience was not substantially equivalent to 14 years of experience. BALCA did not accept the argument that the alternative requirement of 14 years of experience comported with the well-established formula to determine equivalency under the H-1B visa, three years of experience is equal to one year of education under 8 CFR §214.2(h)(4)(iii)(D)(5), and held that the primary and alternative requirements were not substantially equivalent. BALCA relied on Field Memorandum No. 48-94 that set forth the years under the Specific Vocational Preparation (SVP) system for different educational attainments. Therefore, the appropriate alternative for a position requiring a B.S. degree plus two years of experience would have been four years of experience rather than 14 years of experience. While BALCA noted that 8 CFR §214.2(h)(4)(iii)(D)(5) may be persuasive in the absence of other guidance, citing Syscorp International, 1989-INA-00212, it nevertheless relied on Field Memo No. 48-94 in affirming the denial of the labor certification.

One reason why practitioners still include an alternative requirement relating to an equivalent degree is to ensure that the requirement is consistent with the H-1B visa petition. It is not unusual to qualify a foreign national for an H-1B visa who may have the equivalent of a three year degree, and then makes up the fourth year through the equivalent of three years of experience. The following language, which previously passed muster would now put into jeopardy ETA-9089 applications that define an equivalent degree, as follows: “Employer will accept a three year bachelor’s degree and three years of experience as being equivalent to one year of college.” Under the reasoning employed in Globalnet, this assumes that the alternative requirement would involve 12 years of SVP lapsed time while a bachelor’s degree would only require two years of SVP lapsed time. The employer faces a Hobson’s choice. If the employer does not include what it means by an equivalent degree on the ETA-9089, the subsequent I-140 petition will fail. If an employer requires a bachelor’s degree, and if the foreign national does not have the equivalent of a four year degree, and the ETA-9089 does not include a definition with respect to what it means by an equivalent degree, USCIS will assume that the employer required a four year degree and the foreign national would not be able to qualify for the position by virtue of not possessing such a degree.

On the other hand, in light of Globalnet it no longer remains viable to insist on consistency between the H-1B and the labor certification. Hence, if the primary requirement is a bachelor’s degree and two years of experience, and the foreign national does not have a degree whatsoever, the substantially equivalent alternative that would be acceptable to DOL would be four years of experience, as opposed to 14 years of experience. There may be some concern that requiring this formula on the labor certification, which may pass muster for DOL, may still be problematic when the alien has filed an I-140 petition and is also extending the H-1B visa using the “3 for 1” equivalency formula to establish the equivalent degree to qualify for the H-1B occupation. There is some anecdotal evidence of the USCIS questioning the extension of the H-1B visa when the I-140 petition involving the same position did not require a degree.  However, if this issue comes up during an H-1B adjudication, it should be argued that the discrepancy lies in the USCIS regulations and USCIS interpretations relating to H-1B and I-140 petitions, not in the beneficiary’s job or the beneficiary’s qualifications. USCIS ought not to deny an H-1B solely because a beneficiary who has been classified for an H-1B visa through an equivalent degree, either based on a combination of education and experience, or purely through a requirement of 12 plus years of experience, is classified on an I-140 under the EB-3 skilled worker preference requiring something less than a bachelor’s degree.

Finding ways to escape the Globalnet trap (and to achieve consistency with the H-1B) have not been successful. In Microsoft Corporation, 2011-PER-02563 (October 16, 2012), the employer indicated in items H.4 through H.7 in the ETA 9089 that its requirements for the position was a Bachelor’s degree or foreign educational equivalent in Comp. Sci., Eng., Math, Physics, Business or related field and six months of experience in the job offered or in a computer-related occupation or student school project experience. The employer indicated in item H.8 that there was an acceptable alternate combination of education and experience, and specified that it would accept 3 years of work experience for every year missing from a four year college degree. The CO denied on grounds that the alternative requirement was not substantially similar to the primary requirement. When the employer appealed to BALCA, one of its arguments was that 20 CFR §656.17(h)(4)(i) did not apply as it was accepting an alternate combination of education and experience in H.8-C, rather than an alternate experience requirement. This argument, unfortunately, was shot down, since the employer created an alternate requirement by indicating in H.10 that it would require three years of work experience for every year of missing college education. The following extract from the BALCA decision in Microsoft Corporation is worth noting:

The Employer completed item H.8 indicating it would accept an alternate combination of education and experience, but that there was no alternate experience requirement. The Employer, however, completed box H.14 indicating that it will accept three years of work experience for every year of missing education from a four year college degree. Although not listed in item H.8C, box H.14 indicates that the position has, in effect, an alternate experience requirement which varies from zero to twelve depending on the level of education attained by the applicant. Therefore, the CO correctly applied § 656.17(h)(4)(i) in determining whether the alternate experience requirement is substantially equivalent to the primary requirement.

The reason why labor certifications of this sort stumble is because there is an alternative requirement, thus triggering 20 CFR §656.17(h)(4)(i). The employer can arguably require the equivalent of a bachelor’s degree as a sole requirement, rather than insist on a bachelor’s degree or the equivalent of such a degree, by checking No to H.6 and Yes to H.10 in ETA 9089, and explaining the equivalency formula in H.14. See Matter of DNP America LLC, 2012-PER-00335 (Oct. 6 2015) (employer properly answered No to H.6 because it did not require experience in the offered position, and was instead requiring experience in a similar position, which it appropriately indicated in H.10).   This strategy too is likely to fail as the DOL may argue that an alternate requirement was created in H.10, as in Microsoft, although BALCA has yet to rule on such a fact pattern where the labor certification expresses one requirement, rather than a primary and alternate requirement.

While achieving consistency between the H-1B and the educational requirements on the ETA 9089 may be impossible based degree equivalencies through work experience, it behooves the employer to at least frame the alternate requirement appropriately as being substantially similar to the primary requirement so as to avoid a denial of the labor certification. For foreign nationals who have no degree and have qualified for their H-1B visa status through 12 years of work experience, including the formulaic “3 for 1” year rule as a way to express the equivalency on the labor certification will most certainly be fatal. Instead, this author has experienced success when the employer required a bachelor’s degree in the specialized field as a primary requirement, and as an alternate, required two years of experience in the specialized field in lieu of a bachelor’s degree. This is consistent with DOL’s interpretation under Kellogg and 20 CFR §656.17(h)(4)(i) that the primary requirement of a bachelor’s degree (requiring 2 years of SVP time) is substantially equivalent to  the alternate requirement (which is two years of experience). If the position requires two years of experience in addition to a bachelor’s degree, then the alternate requirement could be 4 years of experience in lieu of a bachelor’s degree.  Similarly, when a foreign national has a three year degree, the best practice is to require either a 3 or 4 year bachelor’s degree plus the relevant experience.

Navigating immigration law is already challenging, and it becomes increasingly more so when one is dealing with the DOL and the USCIS, who are committed to different standards relating to equivalency. What is worse is that the goal posts are constantly moved, and what may have been acceptable previously is unbeknownst to anyone suddenly not. Until both the agencies settle their differences, or legislation forces them to do so, the immigration practitioner will need to be constantly threading the needle when representing foreign clients with equivalent degrees in order to avoid a labor certification denial and successfully obtain permanent residency.

[This is a shorter version of a forthcoming article in ILW’s PERM Book III (High Tech/IT Edition, Ed. Joel Stewart). The blog is for informational purposes only and should not be viewed as a substitute for legal advice]