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Bloggings: October 31, 2007

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

October 27, 2007

More About "Or Equivalency"

Please review the first posting on the same topic "or equivalency" before reading this posting. I wrote that for many years, practitioners have placed the words "or equiv" as an educational requirement in Labor Certifications, and that this brought about different reactions in DOL's State and Federal Offices due to the fact that the SWA’s and Regional offices followed a policy of acting independently and not following the policy of the Central Office of DOL. This was further explained by the fact that the Regional Offices of DOL did not come under the direct supervision of the Labor Certification bosses in Washington, and that the States were left largely on their own to interpret the regulations.

This has all been changed by PERM, which has centralized labor certification processing in two National PERM offices (Atlanta and Chicago) and has removed much (if not all) SWA participation from the process, DOL has attempted to regularize the problem of “Or Equivalency” in a 1994 memo, which stated, “When an equivalent degree or alternative work experience is acceptable, the employer must specifically state on the ETA 750, Part A as well as throughout all phase of recruitment exactly what will be considered equivalent or alternative in order to qualify for the job. The DOL understood in its official interpretations that “Or Equivalent” should mean an equivalent, foreign degree, at least when the term is used as a gloss to define the degree requirement on the ETA 750A. In other words, if you filed a pre-PERM labor certification and wrote “Or Equivalent” in item 13 somewhere in the proximity of the box used to define the degree requirement, the meaning should be taken to be “foreign degree equivalent.” Customarily, the SWAs and CO's would remand applications with the comment that “or equivalent” needed to be defined and/or quantified, although results varied, depending on the SWA or the region. Not every state officer followed the director, and many permitted "or equivalent" to be used in a nondescript manner.

Of course, a prudent practitioner would always have provided a reasonable quantification of the “or equivalent” requirement, in order to avoid negative findings or denials, however, some practitioners used the “or equivalent” language in order to broaden the actual requirements so as to encompass the education, training or experience of the alien. Where the Employers had broadened and tailored their alternative requirements to impermissibly broad, vague or imprecise levels, seemingly in order to qualify the alien for the job. BALCA retaliated by holding that when the alien does not meet the priimary job requirements, but only potentially qualifies for the job because the employer has chosen to list alternative job requirements, the employer's alternative requirements are held to be unlawfully tailored to the alien's qualifications, unless the employer has indicated that applicants with any suitable combination of education, training or experience are acceptable.

Although the indiscriminate use of “or equivalency” in labor certification was problematic, it did not always give negative results. Some SWA’s and CO’s permitted “or equivalency”, and some did not. However, it is clear that the use of "or equivalency" is vague and therefore may be tantamount to “tailoring” in specific cases.

Kellogg was ultimately resolved in PERM by the requirement to include the Magic Language, but only if the alien is currently working for the employer. The "or equivalent"issue remained dormant during the last few years, since the Backlog Center must have rarely raised this issue in NOF's, and the newly formed PERM centers concentrated on electronic bugs and processing. However, recently the Service Centers have begun to raise objections to “or equivalent”, sometimes with respect to the Second Preference, and now with the Third Peference.

The administrative policy prohibiting “or equivalent” was raised many years ago. In 1994, DOL issued a Memo to SESA Administrators, stating that “SESAs should “request the employer provide the specifics of what is meant when the word ‘equivalent’ is used. “When the term equivalent is used in conjunction with a degree, we understand to mean the employer is willing to accept an equivalent foreign degree.”

For those cases still in the pipeline, practitioners must scramble to justify the requirement, at least to rebut the presumption that the “or equivalent” language refers only to a foreign diploma evaluation. In approved labor certifications, an argument can be made that the meaning can be interpreted from the recruitment tools – ads, job orders, posting, and others – which in some cases may prove that the language refers to the degree itself, and not just to evaluation of a foreign diploma. Although the ETA Forms should accurately state the meaning of “or equivalent”, if the process shows that the meaning referred to the degree itself, then the DOL presumptions would be overcome.

For new cases, we can note that "or equivalent" should only be used in conjunction with DOL guidelines, to express the fact that a foreign diploma will be acceptable, and that any other interpretation be clearly expressed in language that both defines and quantifies the employer’s minimum requirement.