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DOL cited 20 C.F.R. § 656.24(a)(2)(b) sition under the Kellogg language, this ence imposed by Kellogg in the new ETA It is unclear how well the approach
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and stated that “where there is a reason- language need not appear in the adver- 9089 may make it harder for employers of making the alternate requirement the
able possibility the applicant may meet tisements as confirmed in the following to win labor certifications especially in primary will work in light of the “Kellogg
the job requirements, it is incumbent on DOL Round 10 FAQs: industries where there have been many language” question on the new ETA
the employer to further investigate the Does the advertisement have to layoffs in recent times. 9089. There is a chance that failure to ac-
U.S. applicant’s qualifications.” In its re- contain the so-called “Kellogg” language It remains to be seen whether the cept the Kellogg question on Box G.4.b.
quest for reconsideration, the employer where the application requires it to be employer can avoid the Kellogg lan- of the new ETA 9089 when alternative
argued, inter alia, that it has no duty to used on the application? guage like under the old form by mak- sets of qualifications will be accepted,
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interview candidates who fail to show on Where the “Kellogg” language is ing the alternative requirement the pri- even if F.c. in ETA 9141 was left blank,
their resumes that they satisfy the major required by regulation to appear on the mary requirement. Under the revised could result in an audit or denial of the
job requirements. application, it is not required to appear forms, what is indicated in ETA 9141 will PERM application.
BALCA held that the CO did not in the advertisements used to notify po- be linked to the ETA 9089. The ques- The Kellogg language has returned
question the employer’s business neces- tential applications of the employment tion is whether under the new system with a vengeance in the new ETA 9089,
sity for its job requirements, but instead opportunity. However, the placement of the employer will be able to skip F.c. in and it remains to be seen whether em-
questioned the fact that the employer the language on the application is simply ETA 9141, which asks details about the ployers and their attorneys will be able to
rejected without interview applicants a mechanism to reflect compliance with Alternative Job Requirements and in- avoid it if the alternate requirement can
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who appeared facially qualified for the a substantive, underlying requirement stead complete only F.b. in ETA 9141, still become the single primary require-
position and did not address how they of the program. Therefore, if during an which asks details about the Minimum ment. Employers need to deal with Kel-
were unqualified even possessing a com- audit or at another point in the review of Job Requirements but would actually logg with the respect that it deserves in
bination of education, training and expe- the application it becomes apparent that include information about the alterna- order to avoid a denial.
rience. BALCA upheld the CO’s denial one or more U.S. workers with a suitable tive job requirements. By skipping F.c.
and cited Blessed Sacrament School, combination of education, training or ex- in ETA 9141 (alternative requirements) [This blog is for informational purposes
96-INA-52, slip op. at 3 (Oct. 29, 1997) perience were rejected, the application and completing F.b. (minimum require- only and should not be considered as a
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which held that where the applicant’s will be denied, whether or not the Kel- ments) in ETA 9141, can the employer substitute for legal advice]
resume shows a broad range of experi- logg language appears in the application. argue in Appendix C – Supplemental In-
ence, education and training that raises Still, the fact that the employer has formation that the alternate has become *Kaitlyn Box is a Senior Associate at Cyrus
a reasonable possibility that the appli- to evaluate resumes in light of any com- the primary requirement and thus avoid
cant is qualified even if the resume does bination of education, training or experi- using the Kellogg language? D. Mehta & Partners PLLC.
not expressly state that he or she meets _________________________________________________________________________________________________________
all the requirements, an employer bears Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta & Partners
the burden of further investigating the PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Committee; former
applicant’s credentials. Thus, since the
employer was required to evaluate US chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary Committee, Appellate
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worker applicants under the Kellogg Division, First Department, New York; member of the ABA Commission on Immigration; board member of Volunteers for Legal Ser-
standard – will accept any suitable com- vices and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American
bination of education, experience and Immigration Council and former chair of the Committee on Immigration and Nationality Law of the New York City Bar Association.
training – the employer’s rejection of US He is a frequent speaker and writer on various immigration-related issues, including on ethics, and is also an adjunct professor of law at
worker applicants based on only a review Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein
of their resumes were not considered to Memorial Award for advancing the practice of immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstand-
be lawful rejections. ing efforts in providing pro bono representation in the immigration field. He has also received two AILA Presidential Commendations
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Although the employer has to eval- in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s Who Legal – Corporate
uate candidates who apply for the po- Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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