In a recent case, BALCA issued an interesting decision based on a Kellogg analysis.
In Agma Systems, LLC, 2009-PER-132, the Employer refused to put the "Magic Language" on the PERM application. The language, "Employer will accept any suitable combination of education, training or experience," is required when the alien is working for the employer and only qualifies because of alternative requirements.
The history of the Kellogg quandry rose out of the DOL's displeasure with overly-broad or inappropriate alternative requirements that seemed tailored to the alien. In PERM, which seeks to streamline the application process and reduce it to its lowest, common denominators, the whole issue of Kellogg seemed to disappear when the PERM Rule was issued, simply requiring Employers to put the Magic Language on the PERM Form.
In the first few years after PERM (since March, 2005), Employers ran afoul of the rule, when they failed to put the language on the form, partly because there was no place on the form to put the language, and partly because they did not understand the rule which did not appear in the instructions on the form. As a result, DOL has now included a special place to put the Magic Language on the new PERM form 9089, although the form has not yet been placed into use.
Getting back to more recent developments, today's case of interest is Agma Systems, LLC, 2009-PER-132, August 6, 2009. This case goes right to the heart of the matter. The Employer questioned the appropriateness of the language and challenged its precise meaning. In other words, according to the Employer, the Magic Language is very imprecise, and defines only in vague, overly broad terms, the minimum requirements of the employer, as if any combination of education, training or experience might be acceptable.
In Agma, the Employer actually stated that the Magic Language is wishy-washy and therefore inappropriate. For those who do not know the meaning of "wishy-washy," a quick lookup in Google produces the following definition: "Thin and watery, as tea or soup; insipid. Lacking in strength of character or purpose; ineffective." Indeed, veteran practitioners have probably wondered from time to time about the exact meaning of this phrase.
The Employer, being a computer systems company, applied pragmatism to the situation and argued that the requirements, although stated in the alternative, were so fundamental and basic to the profession, that a generalized, vague statement about "any combination of education, training or experience" would be inaccurate and inappropriate to put on the form.
The Board reviewed the arguments of the employer and after reflecting on the famous Kellogg decision (1994-INA-465), February 2, 1998), stated that, "the essence of that decision was to prevent an employer from tailoring alternative requirements, which were substantially different from the primary job requirements, to the alien's specific qualifications."
Finding the main requirements and the alternative requirements "nearly identical," the Board held that the Employer's application did not violate the regulations by failing to include the Kellogg language, and therefore was reversed.