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Allowing Alternative Experience Requirements: How PERM Adopted The Kellogg Standard

by Elizabeth T. Reichard

In the real world, when an employer hires someone, it reviews the candidate’s experience, education and skills set as a whole in order to determine whether the candidate has the qualifications to perform the job duties. Employers often hire individuals who do not meet the “standard job requirements” so long as they obtained the necessary skills through an alternative route of education and experience. This real world of hiring employees is more flexible than one in which employers hire alien employees. In that sphere, employers are restricted in what alternative experience they can consider. While they can take alternative experience into consideration, they must do so in a manner that is not so restrictive as to prevent a U.S. worker from qualifying for the job. This article examines the prior and current practices of the Department of Labor with regard to considering alternative experience qualifications in the labor certification process.

I. Background

Under both PERM and the old labor certification program, any job requirements outlined in a labor certification application must be the actual minimum requirements for the job.¹ A worker cannot be hired if he/she has less training or experience than the stated minimum requirements.The requirements must be those normally required for the job and can neither be tailored to the alien, nor exceed those allowed by Specific Vocational Preparation level assigned to the occupation.²

The DOL – with some limitations – has adopted the real world practice which allows employers to consider experience different from that which is typically required for the job. Such “alternative experience” must be described in the Labor Certification Application and must adhere to the general rules described above. Although the DOL has permitted employers to consider alternative experience, it has qualified the rule so as to prohibit employers from tailoring job requirements in a way that enables an otherwise unqualified applicant qualified for the position.

II. Kellogg Standard

Prior to PERM, the doctrine permitting alternative experience was outlined by BALCA in Matter of Francis Kellogg.³ Kellogg involved an employer seeking to hire a live-in cook. The Labor Certification Application listed as the job requirements: “two years experience in the job offered or two years experience in the related occupation of live-in housekeeper with cooking experience.”⁴ The alternative requirement raised a red flag to the Certifying Officer because a live-in housekeeper with cooking experience had a lower Specific Vocational Preparation level than a live-in cook. This was problematic because the alien applicant in question did not have the primary requirements and only qualified for the job based on the lesser qualifications described.⁵ As such, it appeared as if the job requirements were tailored so that an unqualified alien would qualify for the job.

In response, BALCA held that an employer can include alternative requirements for a job; however, such “alternatives must be substantially equivalent” to the primary requirement so that the “applicant can perform in a reasonable manner the duties of the job being offered.”⁶ BALCA used the position of a computer programmer to illustrate this rule. The primary requirement for a computer programmer is a degree in computer science or mathematics. A legitimate alternative requirement for the position would be a certain number of years of programming experience.⁷ Both requirements are substantially equivalent because they provide the individual with the requisite skills to perform the duties of the job. BALCA then qualified the general rule and held that even if the alternative requirements are substantially equivalent, it will be presumed that they are “unlawfully tailored to the alien’s qualifications . . . unless the employer has [also] indicated that applicants with any suitable combination of education, training or experience are acceptable.”⁸ This qualification recognizes that there may also be other combinations of education, training or experience which could qualify other applicants top perform the job duties in a similar manner. It ultimately reflects the real world approach to the hiring employees.

III. PERM Standard

PERM retains the alternative experience doctrine established by BALCA in Kellogg.⁹ Specifically, it allows the employer to specify alternative requirements if they are “substantially equivalent” to the primary requirements.¹⁰ Further, if the alien is already working for the employer and the alien only qualifies for the job based on the alternative requirements, then the employer must indicate that it will accept applications from those with “any suitable combination of education, training or experience.”¹¹

Practically, employers seeking to include alternative requirements for the job should pay special attention when completing Section H, Job Opportunity Information, of ETA Form 9089. Items 4 – 6 request information regarding the primary requirements for the job, specifically the minimum level of education, the field of study, the amount of training, the field of training, experience in the job offered, and the amount of experience in the job offered. Items 7 – 10 then permit the employer to specify the alternative requirements will be accepted for the position. For example, it asks if and what alternative field of study will be accepted. It asks if the employer will consider a combination of education and experience and if so what level of education, what type of education and how many years of experience will equate to the primary requirement. It also asks if the employer will accept a foreign educational equivalent. It finally asks if and what alternative occupation is acceptable.

Employers must keep in mind the Kellogg standard that was codified by PERM when completing this portion of Form 9089. For example, when checking “Yes” in Item 8 which asks if an alternate combination of education and experience is acceptable, the employer should be careful to describe the amount of education, the field of education and the years of experience required, making sure that they “substantially equivalent” to the primary requirements described in Items 4 – 6. If they bear little relevance or describe lesser qualifications, it is likely that the case will trigger an audit. Similarly, when answering Item 10, which asks about whether an alternative occupation is acceptable, the employer should carefully assess whether the skills obtained in this alternate occupation are “substantially equivalent” to those obtained from the job offered. In order to avoid difficulties in the case of an audit, it may be wise to include in the internal office file an analysis of how the requirements are “substantially equivalent.” Such an analysis should consider the similarity of the skills obtained and the duties involved.

Employers also need to be aware of the limited space on Form 9089. For example, Item 10-B allows the employer to indicate the job title of the acceptable alternate occupation. On the previous labor certification form, ETA-750A, there was sufficient space to describe a related occupation, not just indicate the title. On Form 9089, however, it only provides a small space and asks only for the title of the alternate occupation. In order to best describe the alternate occupation, however, it might be best to use that limited space to state the job title and qualify it with a brief list of duties. The space is limited, so it is important to be very deliberate when describing the skills.

IV. Conclusion

As described, with regard to alternative experience requirements for the job, PERM has adopted a real world solution that also protects the U.S. workforce. By adopting the Kellogg standard, it has codified an approach that recognizes that employers tend to look at applicants’ experience, education, and skills set as a whole when deciding whether they have the skills necessary to perform the job duties. At the same time, it protects U.S. workers because it prevents employers from abusing the labor certification process by carefully tailoring job requirements so that they specifically meet the qualifications of the alien employee.

About The Author

Elizabeth T. Reichard is an Associate at Cyrus D. Mehta and Associates, P.L.L.C, where she practices primarily in the area of immigration law. She is a graduate of the College of the Holy Cross and Case Western Reserve School of Law, where she was the Editor-in-Chief of the Journal of International Law. Ms. Reichard is the Secretary of the Board of Trustees of International Partners in Mission, an international non-profit organization working to empower women, children, and youth. She is admitted to the bar of the State of New York.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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