Matter of Francis Kellogg: alternative requirements in labor certification and Kellogg languageMatter of Francis Kellogg, 1994-INA-465, 1994-INA-544, 1995-INA-68 (BALCA Feb. 2, 1998) (en banc)

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

The case at a glance

Background: why labor certification cares about job requirements

Most EB-2 and EB-3 employment-based immigrants first need the employer to obtain labor certification from the U.S. Department of Labor (DOL), known as the PERM process (see the PERM labor certification guide). Labor certification confirms that there is no U.S. worker who is "able, willing, qualified and available" to do the job. To show this, the employer must recruit publicly through the required channels and honestly evaluate every U.S. worker who applies.

That makes how the job requirements are written critical. The narrower the requirements, and the more closely they track the foreign worker's own résumé, the fewer qualified U.S. workers there will be. DOL rules have therefore long prohibited job requirements "tailored to the alien's qualifications" and required that job requirements be those normally needed for the position.

In practice, employers often write two sets of requirements: primary requirements, such as "master's degree + 2 years of experience," and alternative requirements, such as "bachelor's degree + 5 years of experience" or "years of experience may substitute for a degree." Alternative requirements are not unlawful in themselves. The question is: if the foreign worker happens to meet only the alternative requirements, were those alternatives written specifically for him or her?

Facts and issues

Kellogg consolidated three labor certification appeals before BALCA. All involved the same situation: the employer listed both primary and alternative requirements in the labor certification application, and the foreign worker did not meet the primary requirements, qualifying only under the alternative requirements. BALCA heard the cases en banc to answer these questions:

1. When the foreign worker qualifies only under the alternative requirements, are those alternative requirements "tailored"?
2. Is there a way for the employer to keep the alternative requirements while avoiding that conclusion?

How BALCA ruled

The en banc board held that when the foreign worker does not meet the primary requirements and qualifies only because of the alternative requirements, those alternative requirements are tailored to the foreign worker and prohibited under the old rule at 656.21(b)(5), unless the employer indicates that applicants with any suitable combination of education, training or experience are acceptable. That statement later became known in the field as "Kellogg language."

BALCA's reasoning: if the employer is willing to accept the foreign worker based on a "non-primary" combination, it should not limit U.S. applicants to an equally narrow combination; the employer must consider U.S. workers under the same open standard. As long as the employer makes this open-ended statement and actually evaluates U.S. applicants that way during recruitment, the alternative requirements are no longer treated as tailored.

How the PERM rule absorbed Kellogg: 20 CFR 656.17(h)(4)

Since March 28, 2005, labor certification has been handled through the PERM process. The PERM rule wrote the Kellogg principle into 20 CFR 656.17(h)(4):

• (h)(4)(i): Alternative experience requirements must be substantially equivalent to the primary requirements.
• (h)(4)(ii): If the foreign worker is already employed by the employer, does not meet the primary requirements, and would qualify only under the alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.

The key sentence of the regulation reads (quoted verbatim):

“...certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.”

Note that the regulation addresses the situation where the foreign worker is already working for the employer, which is the case in the great majority of PERM filings. A related rule is 656.17(i)(3): where the foreign worker already works for the employer, DOL reviews the training and experience the worker had when hired, and the employer generally cannot require U.S. applicants to have more than that. Exceptions include where the foreign worker gained the experience in a position with the employer that is not substantially comparable to the position being certified, or where the employer can show it is no longer feasible to train a new worker for the position. The two rules often have to be analyzed together.

Later BALCA decisions

After PERM took effect, BALCA issued a series of decisions on Kellogg language. Below are several representative cases (case numbers and dates compiled from the DOL BALCA PERM digest and law firm articles):

In addition, according to DOL's PERM FAQs as cited in law firm articles, where Kellogg language is required it need not appear in recruitment advertisements, but the employer must still evaluate U.S. applicants under that standard.

The 2023 ETA-9089 form

The backdrop to Federal Insurance was that the old ETA-9089 had no dedicated place for Kellogg language. Since June 1, 2023, DOL has used a new ETA-9089 (filed through the FLAG system and linked to the ETA-9141 prevailing wage request). The new form asks directly whether the foreign worker is currently employed by the employer, whether the worker qualifies only under the alternative requirements, and whether the employer will accept any suitable combination of education, training or experience. This means the "no place on the form" rationale behind Federal Insurance largely no longer applies under the new form; employers must answer the question head-on. How to complete the alternative requirements on the new form, and when the employer must elect to accept Kellogg language, are still debated in practice and must be handled case by case.

What it means for employers and applicants

• Employers: Before writing alternative requirements on the ETA-9141 and ETA-9089, first confirm whether the foreign worker meets the primary requirements or only the alternative requirements. If only the alternatives, the employer must accept Kellogg language and evaluate U.S. applicants under the "any suitable combination" standard; this may cause more U.S. applicants to be considered qualified.
• Foreign workers already employed by the employer (for example, H-1B holders): Your education and experience profile directly affects how the job requirements are written. Three-year bachelor's degrees, combinations of several degrees, or no degree but long experience are the situations most likely to raise alternative-requirement and Kellogg issues, and should be reviewed with an attorney before PERM begins.
• Choosing between EB-2 and EB-3: The common formulation "master's degree, or bachelor's degree + 5 years of progressive experience" relates to EB-2 eligibility; whether the two sets of requirements are substantially equivalent, and which set the foreign worker meets, affects review of the labor certification and the later I-140. At the I-140 stage, USCIS also reviews whether the foreign worker met the labor certification requirements before the priority date.
• Recruitment and audits: In an audit, DOL may ask the employer to explain how it evaluated each U.S. applicant. Where the Kellogg standard applies, rejecting a U.S. applicant just because the résumé does not meet the primary requirements is very risky.

Practical tips

1. Before starting PERM, list all of the foreign worker's education and experience (including experience gained with this employer and elsewhere) item by item, and determine whether the primary requirements are met.
2. If alternative requirements are needed, first assess whether they are substantially equivalent to the primary requirements; alternative requirements that are not substantially equivalent can themselves lead to denial.
3. Where the foreign worker meets only the alternative requirements, answer the relevant questions on the ETA-9089 truthfully and accept Kellogg language, and make sure the recruitment and interview records show U.S. applicants were evaluated under the "any suitable combination" standard.
4. Keep complete recruitment records in case of audit. For the general PERM process and timeline, start with the PERM timeline tool.
5. Our firm provides legal services only and does not provide employer resources or job matching; PERM requires your own employer.

Frequently asked questions

Decision text and sources

• eCFR: 20 CFR 656.17 (including (h)(4) alternative requirements and (i)(3) experience gained with the employer)
• Cornell LII: 20 CFR 656.17
• U.S. Department of Labor, Office of Administrative Law Judges: BALCA PERM digest
• U.S. Department of Labor, Office of Foreign Labor Certification (OFLC)

Related reading

• PERM labor certification guide
• PERM timeline tool
• Form I-140 explained: immigrant petition for alien workers
• AC21 job change assessment tool

This page is a general introduction to a court decision and is not legal advice. The law and case law change, and outcomes depend on the specific facts. To evaluate your situation, consult an attorney.