PDA

View Full Version : PERM : Kellogg Language H-14


zebraforce
02-16-2012, 09:45 PM
All,
I am hoping to file EB2-PERM, and the attorney has sent 9089 for review. I have a concern surrounding the kellogg language (or lack thereof, to be precise).

Quote from PERM website:
Is the employer required to include the statement, “any suitable combination of
experience of education, training, or experience is acceptable” on the application
when the employer requires experience in an alternate occupation and not in the job
offered?
No, the employer is not required to include the statement on the application if the
employer has indicated it requires experience in an alternate occupation and not in
the job offered. The “any suitable combination of experience of education, training,
or experience is acceptable” statement is only required where there are primary as
well as alternative requirements and then only if the alien is already employed by the
employer and the alien does not meet the primary job requirements and only
potentially qualifies for the job by virtue of the employer’s “alternative” as opposed
to its “primary” requirements.

Here are the relevant H/J sections.

H3 - Senior Program/Project Manager
H4 - Minimum - Bachelors
H4A - Empty, H4B - Comp. Sci
H5 - Training - No, H5A - Empty, H5B - Empty
H6 -Experience = Yes, H6A - 60 months
H7 -Alternate field of study = Yes, H7A - Electronics (I hold a B.E in EEE)
H8 - is alternate combo acceptable - No, H8A,B,C - Empty
H9 - Foreign Education - Yes
H10 - Alternate Occupation - Yes, H10A - 60 months, H10B - Program Manager or related
H12 - requirements normal? -Yes
H14 -Empty - Should this contain the kellogg language?


J17 - Training - N/A
J18 - experience per H6 - No
J19 - alternate per H8 - N/A
J20 -experience per H10 - Yes
J21 - gain exp. with employer - No
J22 - pay for edu/training- No
J23 - currently employed - Yes


Thanks much for your help!

hsd31
02-17-2012, 11:34 AM
Kellogg language says "any suitable combination of experience of education, training, or experience is acceptable". The answer to the H8 question ("Is there an alternate combination of education and experience that is acceptable?") in your case is "No". Adding the Kellogg language will contradict H8.

Only concern I would raise is that answering No to H8 and no Kellogg Language "may" sound like the position is tailored for your qualifications -- then again, I'm not an attorney and what you have may be good enough for an EB2.

zebraforce
02-17-2012, 12:10 PM
Thank you for your comment.

I checked with my lawyer and he replied- "No Kellogg language is required because, according to the evaluation, he possesses the equivalent of a Bachelor’s degree based on academics only (rather than a combination of academics and experience, or only employment experience)"

While I agree with your view that Kellogg in H14 might lower/contradict H8, I still am eligible only based on alternate requirements right? In which case, how would this be OK without kellogg language?

hsd31
02-17-2012, 12:38 PM
H8 determine if alternate requirements are acceptable and J19 determine if you posses them. Your attorney has answered No for both, so based on how it is filled out you are ok there.

The H section is for the "Job" and the J is for the "Job Applicant". Based on what your attorney response it almost looks like he/she has section H filled out from the perspective of the Job Applicant. The question they have to ask is -- is there anybody else in your company with the same Job Title, but with any other combination of Education, Training and Experience besides what you posses. If the answer to that is no, then H8/H14 is filled correctly. If the answer to that is yes, then you have to add that in to H8/H14. Again, how it is filled out now is enough to qualify as EB2, but if H8/H14 are incorrectly filled out and your case gets audited, then you may be in trouble.

zebraforce
02-17-2012, 01:36 PM
Thanks again!

H8 determine if alternate requirements are acceptable and J19 determine if you posses them. Your attorney has answered No for both, so based on how it is filled out you are ok there. - J19 is answered N/A, but I guess that is just semantics? As in, if we won't accept anything, it does not matter whether the alien posses a combo or not?

The H section is for the "Job" and the J is for the "Job Applicant". Based on what your attorney response it almost looks like he/she has section H filled out from the perspective of the Job Applicant. The question they have to ask is -- is there anybody else in your company with the same Job Title, but with any other combination of Education, Training and Experience besides what you posses. If the answer to that is no, then H8/H14 is filled correctly. If the answer to that is yes, then you have to add that in to H8/H14. Again, how it is filled out now is enough to qualify as EB2, but if H8/H14 are incorrectly filled out and your case gets audited, then you may be in trouble. I agree. My worry is as you state, the H section seems to be filled out with 'me' in mind, which could potentially be interpreted as 'tailoring' ?

Notwithstanding whether there is someone within my employer who qualifies for a combo, do I not meet the Kellogg checklist as-is? i.e.

There are primary as as well as alternative requirements in my case (H10, 10A, 10B)
I am already employed by the employer filing the Labor (J-23)
I do not meet the primary job requirements (J-18)
I only qualify for the job by virtue of the employer's alternative as opposed to primary (J-20)

Quote from FAQ on the labor cert website (Round 10 - http://www.foreignlaborcert.doleta.gov/pdf/perm_faqs_5-9-07.pdf)

The “any suitable combination of experience of education, training, or experience is acceptable” statement is only required where there are primary as well as alternative requirements and then only if the alien is already employed by the employer and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer’s “alternative” as opposed to its “primary” requirements.