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IMMIGRATION MAY 26, 2023 | The Indian Eye 36
Kellogg Has Reared its Ugly Head in the
New Labor Certification Form:
How Do We Deal with Alternate Requirements?
ur most recent blog link to the new ETA 9089, au- blog, Kellogg held that employ- a primary requirement just in accustomed to including this
in this series discusses tomatically populating certain ers should indicate that they case the DOL revived the Kel- language in recruitment or the
Othe new Application fields on the PERM application will accept “any suitable combi- logg language. ETA 9089 itself.
for Permanent Employment form. Watermarked versions of nation of education, training or Take the example of a Sys- Box G.4. of the new ETA
Certification, Form ETA 9089 both new forms are available experience” if the primary and tems Engineer with the follow- 9089 asks “Is the foreign work-
(“ETA 9089”) and correspond- on the DOL website. This func- alternate requirements for the ing job duties and requirements: er currently working for the
ing Application for Prevailing tionality of the new form has position are not “substantially Conduct project execution employer submitting this ap-
Wage Determination, Form introduced uncertainty for prac- equivalent”. 20 CFR §656.17(h) in a global delivery model using plication?” An employer who
ETA 9141 (“ETA 9141”) pro- titioners, who must now ensure (4)(ii) broadened the holding various methodologies like Ag- answers “yes” to this question
mulgated by the Department of that information, specifically of Kellogg to apply whenever ile to deliver projects in enter- must then indicate in Box G.4.a.
Labor (DOL), and, specifical- that pertaining to alternative re- there are alternate require- prise applications space. Utilize “whether the foreign worker
ly, how issues concerning dual quirements, is listed on the ETA ments, providing as follows: Oracle Peoplesoft HCM, SCM only qualifies for the job oppor-
representation and familial re- 9141 in such a way that it will be “If the alien beneficia- and CRM, SaaS, and cloud tunity by virtue of the employ-
lationships can be dealt with on correctly incorporated into the ry already is employed by the based software like Salesforce. er’s alternative requirements
the new form. In this blog, we ETA 9089 as well. employer and the alien does Conduct architecture, analysis, identified in Section F of the
discuss how to handle alternate The new ETA 9089 has un- not meet the primary job re- design, development, custom- ETA 9141 identified in Ques-
requirements in the new ETA dergone formatting changes, as quirements and only potentially ization, and maintenance of tion E.1”. If the answer to this
9089. well. The new form appears to qualifies for the job by virtue of applications using PeopleSoft, question is “yes” as well, Box
The Office of Foreign La- change the way employers must the employer’s alternative re- Salesforce Cloud, Data analyt- G.4.b. asks the employer to “se-
bor Certification (OFLC) of the list alternative requirements quirements, certification will be ics tools like Tableau, PL/SQL, lect the applicable statement
DOL has now delayed the im- and specifically incorporate the denied unless the application SQL, Oracle, HP Quality Cen- describing the employer’s will-
plementation of the new ETA Kellogg “magic language”. The states that any suitable combi- tre, Rally, ServiceNow along ingness to accept any suitable
9089 until June 1, 2023. The new controlling guidance on alterna- nation of education, training, or with testing, application packag- combination of education, ex-
form was originally scheduled to tive requirements comes from experience is acceptable.” ing, release co-ordination, secu- perience, or training”, mirroring
go into effect on May 16, 2023. the Board of Alien Labor Cer- However, in Matter of rity administration and product the Kellogg “magic language”.
OFLC will continue accepting tification Appeals (BALCA)’s Federal Insurance Co., 2008- management from ideation to The two possible responses to
the older version of form ETA decision in Matter of Francis PER-00037 (Feb. 20, 2009), delivery of the product. this question are “I accept” or
9089 until June 1, 2023. Signifi- Kellogg, 94-INA-465 (Feb. 2, BALCA held that there is no Reqs: Master’s degree (or “I do not accept”.
cantly, the new ETA 9141 will 1998). As discussed in a prior appropriate place on the ETA equiv) in CompApps, CompSci, Once the Kellogg mag-
9089 to include the Kellogg Engg (Comp/Mech/Electronic), ic language is included in the
language, so an employer’s or related field, plus 3 years of ETA 9089, it will be harder for
failure to do so should not experience in position involving employers to justify the law-
be a basis for denial of the similar duties/technical capabil- ful rejection of US workers. In
PERM application. ities. Matter of Goldman Sachs &
As the holding of Fed- In this case study, the em- Co., 2011-PER-01064 (June. 8,
eral Insurance suggests, ployer instead of requiring 3 2012), the employer, indicated
the old ETA 9089 was not years of experience in the exact on the ETA Form 9089 that it
well formatted to incorpo- duties of the position as offered would accept for the position
rate the Kellogg language. above has asked for “3 years of of Financial Analyst, “any suit-
Box H.6 of the old ETA experience in a position(s) in- able combination of education,
9089 asks “Is experience volving similar duties/technical training and experience,” which
in the job offered required capabilities.” was the required Kellogg mag-
for the job?”. Box H.10 The employer will address ic language. During supervised
then asks “Is experience this in H.10 rather than H.6. in recruitment, the employer sub-
in the alternate occupation the existing ETA 9089 by an- mitted an expert opinion to the
acceptable?” If the em- swering “no” to H.6 and “yes” DOL detailing why thirty-five
ployer answered both H.6 to H.10 – Is experience in an U.S. worker applicants had each
and H.10, it would likely alternate occupation accept- been rejected without interview.
trigger the requirement able? Then, by indicating the As examples, BALCA high-
to state the Kellogg lan- number of months of experi- lighted one applicant who was
guage. Many employers ence requirement in the alter- rejected despite his “substantial
chose to avoid stating the nate occupations in H.10A and academic business credentials”
Kellogg language on the by referring to H.14 in H.10B and because he did not possess
form by answering “no” that the employer will accept “narrowly focused” experience
to question H.6. Instead, “3 years of experience in a posi- necessary for the position and
one could respond “yes” to tion(s) involving similar duties/ another applicant who the em-
box H.10., which asked “Is technical capabilities.” Even ployer described as having “a
m of experience in an alternate before Federal Insurance, by long and varied career in ac-
occupation acceptable?”
checking only H.10 rather than
counting and financial report-
CYRUS D. MEHTA & PARTNERS PLLC This approach resulted in both H.6 and H.10, the employ- ing” but lacking in certain spe-
the alternate requirement
cific experience. The Certifying
er could avoid the Kellogg lan-
listed in H.10 becoming guage. However, if an employer Officer (CO) denied the labor
the primary requirement. chose to answer both H.6 and certification finding that the em-
Because Box H.6 was an- H.10 from February 20, 2009, ployer rejected U.S. workers for
swered “no”, there was the Kellogg language would not other than job related reasons.
only one requirement in trigger because of Federal In- The CO specifically emphasized
H.10 rather than a primary surance. that the employer had indicated
and alternate requirement. The new Form ETA 9089, its willingness to accept “any
However, this approach however, appears to rectify the suitable combination of edu-
became irrelevant after problem identified in Federal cation, training or experience”
Federal Insurance was
Insurance by specifically refer-
and had not taken the time to
decided on February 20, encing the Kellogg language. explore and evaluate the suit-
2 6th Floor 2009, although employers This change could create confu- ability of the applicants’ educa-
still attempted to only have sion for employers who are not tion, training or experience. The
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