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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


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Although BALCA panel decisions are not precedential, and the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.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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