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10 May 2019
In the matter of NCS Pearson Inc (2015 Programme Electronic Review Management (PERM) 110, 24 January 2019), the Board of Alien Labour Certification (BALCA) reversed the decision of the certifying officer who denied the PERM labour application because the employer did not specify the exact combination of education, training and experience equivalent to a bachelor's degree that would be acceptable. BALCA held that the language used by the employer was acceptable to indicate that it would accept as an alternative to a bachelor's degree "any combination of edu, tng, and/or exp equivalent to a bachelor's degree as determined by written eval".
However, the degree equivalence, as stated, relates to the evaluation of an academic diploma that is not based on purely academic studies, and, as such, does not support a second preference application requiring an advanced degree or a third preference professional requiring a bachelor's degree.
The requirement of a bachelor's degree or equivalent stated as "any combination of edu, tng, and/or exp equivalent to a bachelor's degree as determined by written eval" does not do anything to further a second or third preference petition, since those petitions can be approved only on the basis of a wholly academic degree.
Although BALCA panel decisions are not precedential, and the opinion is not en banc and represents a panel of three judges, BALCA cites similar cases that have also been decided in favour of the employer – seemingly a trend of liberal reasoning. But this victory should be read to apply only to alternate experience requirements and not to the main set of requirements, which would require a different level of scrutiny to determine whether the requirements are too vague for labour certification.
The case also offers a possible conflict between the vagueness issue (actual minimum requirements) and the Kellogg doctrine (impermissibly broad alternate requirements). While the combination of education, training and experience has not been found to be too vague to determine the employer's actual minimum requirements, the certifying officer could have found the equivalency language restrictive, unacceptable and overly broad under Kellogg and issued a denial without an audit.
For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (email@example.com). The Fakhoury Law Group PC website can be accessed at www.employmentimmigration.com.
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