BALCA vacates denial of Labor application – Lack of Kellogg Language would offend fundamental fairness and procedural due process

Posted On: April 30, 2009

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Computer Systems Analyst. Accordingly, the Board directed the CO to grant certification. This LC was filed prior to the effective date of the “PERM” regulations.

The Employer filed an ETA Form 9089, Application for Permanent Alien Employment on behalf of the beneficiary. The CO denied the application in December of 2006, solely on the basis that Form 9089 lacked the Kellogg language. Specifically, the CO found that the alien currently worked for the Petitioner, and only qualified by virtue of an alternative experience requirement, and the application did not provide the following language: “any suitable combination of education, training, or experience” would be acceptable.

Upon BALCA review, it was determined that the Francis Kellogg decision governs the nature of this case. In Kellogg, the Board reversed the CO’s denial of certification based on the Employer’s failure to write the Kellogg language on the ETA Form 9089 because a denial on that basis would offend fundamental fairness and procedural due process. It would offend fundamental fairness and procedural due process because the instructions for ETA Form 9089 failed to provide a place to write the language, and the Employment Training Administration (ETA) had not provided instructions to the public to handle the issue in a timely manner.

Accordingly, the CO properly vacated the CO’s final determination and granted certification.