United States: 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Although BALCA panel decisions are not precedential, and the opinion is not en banc and only represents a panel of three judges, the Board cites similar cases that have also been decided in favor of the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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