Labor Certification Denials

Reversed by BALCA

Labor Certification Denials Reversed by BALCA - The Board of Alien Labor Certification Appeals (BALCA) has overruled the Employment and Training Administration long held position that failure to include the words "any suitable combination of education, training or experience is acceptable" (Kellogg Language) in certain applications for permanent labor certification. DOL regulations require this language where a company already employs the beneficiary worker who qualifies for the permanent position only by virtue of experience gained in an occupation other than the permanent job itself. BALCA concluded that the because the application form, in use since March 2005, does not specify where the Kellogg language is supposed to go, denying applications for failure to include it constitutes a denial of due process.

It is now likely that cases pending which do not include the language will be approved, and that cases previously denied and then appealed or subject to reconsideration will ultimately be approved. Cases denied on the basis of Kellogg language for which the appeal period has lapsed can not be revived.

The decision will have a very short lived effect. Beginning in August 1, 2009, ETA will require use of its new PERM application, which includes the Kellogg language and directs applicants to type in the words "I AGREE" in situations where Kellogg applies. The Kellogg language derives from the 1998 case in which BALCA first articulated the policy, later codified into regulation.

Back to Top

<<Return