BALCA Approval Of Equivalency Language Is A Double Edged Sword
In Matter of NCS Pearson, Inc., (2015 PERM 110, January 24,
2019), BALCA reversed the decision of the CO who denied the PERM
labor 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
“[a]ny combination of edu, tng, and/or exp equivalent to a
bachelor’s degree as determined by written
eval.””
Note, however, that 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 2nd
Preference application requiring an advanced degree or a
3rdPreference Professional requiring a Bachelor’s Degree.
The requirement of a bachelor’s degree or equivalent stated
as “[a]ny combination of edu, tng, and/or exp equivalent to a
bachelor’s degree as determined by written eval”
doesn’t do anything to further a 2nd or 3rd preference petition
since those petitions can only be approved on the basis of a wholly
academic degree.
Although BALCA panel decisions are not precedential, and the
opinion is not en banc and only represents a panel of three judges,
the Board cites similar cases that have also been decided in favor
of the employer, seemingly a trend of liberal reasoning; but this
victory should only be read to apply 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 labor 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 CO could have found the equivalency language restrictive and
unacceptable as overly broad under Kellogg and issued a denial
without an audit.
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