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When exactly is the "magic language" (Kellogg language) required? Although this question was on the agenda, it was not thoroughly discussed, perhaps due to lack of time. We have received very inconsistent PERM determinations on this issue. Where the beneficiary is employed with the petitioning company and qualifies for the position based on the alternative experience requirements, we have almost all of these such cases approved until about July 2006; since then, we have had 3 denials for lack of "magic language" where the applications were completed in exactly the same manner. (On the same day that we received a denial, we also received an approval on another case that was virtually identical). We have fortunately been able to re-file with various strategies and obtained subsequent approvals, but the DOL's logic on this issue is not consistent or clear.

Answer by Edward Litwin:

Yes, we did run out of time and will be inviting Linda Rose back to our next session on November 2nd to discuss the "magic language."

Your question adds confirmation to something I mentioned in the last session, that is, that the Department of Labor may change their computer algorithms or other rule as they go along. Just because you obtained approvals in the past, does not mean that you will obtain them presently. However, this may be the same for denials, you may have received a denial in the past for which you will not receive a denial presently.

I think it is very clear that when the beneficiary of a labor certification is working for the employer and qualifies based on alternative requirements, then the Kellogg language must be used. Unfortunately, it is not always clear as to whether the requirements are "alternative" or "primary."

We have heard of some attorneys who, not wanting to take the risk, uses the Kellogg language on every labor certification. I, personally, think this is caving in to a policy over principle which is not any too clear. To be on the safe side, however, unless you are sure that the Form 9089 has been drafted very clearly so that the alien meets the primary requirements, you may want to include the "magic language" in Item #14, at least, until we have received additional clarification from the Department of Labor.