The PERM labor certification process is often the first step for employers seeking to hire foreign workers permanently in the U.S. through the employment based green card process. The process ensures that there are no qualified U.S. workers available for the job and that the employment of the foreign worker will not adversely impact the wages and working conditions of U.S. workers.

Employers will need to develop a job description for the sponsored job opportunity and ensure that the company’s minimum requirements are properly reflected. The Department of Labor (DOL) limits the requirements to the employer’s actual minimum requirements for the occupation. These requirements should not be based on preference or be unduly restrictive or tailored to the foreign worker because this is viewed as disadvantaging U.S. workers.

When developing the minimum requirements for the position, one particular area of complexity is the inclusion of a foreign language requirement. Employers must carefully assess the pros and cons of including a foreign language requirement for the sponsored job opportunity.  This article will help employers understand how to justify and document the necessity of including a foreign language requirement in their PERM labor certification applications.

Justifying a Foreign Language Requirement

The DOL aims to prevent unnecessary barriers for U.S. workers during the recruitment phase of the PERM process. As a result, the DOL is cautious about allowing foreign language requirements in job descriptions. Therefore, a PERM application that includes a foreign language requirement will most likely be audited by the DOL. To justify a foreign language requirement on a PERM application, the employer must first establish business necessity and ensure that proper documentation can be provided in preparation of an audit. Generally, to establish business necessity, an employer must demonstrate that the foreign language requirement bears a reasonable relationship to the occupation in the context of the employer’s business and is essential to perform the job in a reasonable manner.

Demonstrating business necessity for a foreign language requirement is based upon the following:

(1) The nature of the occupation, e.g., translator; or

(2) The need to communicate with a large majority of the employer’s customers, contractors, or employees who cannot communicate effectively in English.

The nature of the occupation

If the position inherently requires knowledge of a foreign language in order to perform the basic job duties, the business necessity statement should be more straightforward. Examples of job opportunities that inherently require knowledge of a foreign language include a translator or a foreign language teacher. In these types of cases, a business necessity statement with a detailed description of the job duties should suffice along with documentation demonstrating the job duties involved. This can include samples of documents that need to be translated or examples of assignments and course syllabus.

The need to communicate with a large majority of the employer’s customers, contractors, or employees who cannot communicate effectively in English

If the position requires communication with a large majority of the employer’s customers, contactors, or employees who cannot communicate in English, the employer’s documentation to justify a foreign language requirement will be extensive. In order to demonstrate business necessity, the employer will have to:

• Provide the number and proportion of its clients, contractors, or employees who cannot communicate in English, and/or a detailed plan to market products or services in a foreign country; and
• Provide a detailed explanation of why the duties of the position for which certification is sought requires frequent contact and communication with customers, employees or contractors who cannot communicate in English and why it is reasonable to believe the allegedly foreign-language-speaking customers, employees, and contractors cannot communicate in English.

To prove the criteria above, employers must be prepared to document the number and proportion of its customers who cannot communicate effectively in English. This may prove less difficult in situations where an employer’s customer base is in a foreign country and the language is the native language for that country. Employers should also provide documentation that it is doing business in that country. Copies of marketing materials, a business plan, invoices, and business communication (letters, emails, quotes, and invoices) will help to demonstrate the need to communicate with customers in a foreign country.

If the number or proportion of customers is minimal, employers can present evidence indicating that the demand for communication in the foreign language is expected to rise over time. This may include showcasing marketing strategies aimed at expanding the business and providing documentation highlighting the critical nature of these communications in the foreign language. This evidence will help demonstrate the importance of the foreign language requirement for the business operations, justifying the need of hiring a foreign worker who is fluent in that language. Supplementing this information with a market research study, or contracts, invoices, business agreements, reports, and correspondence to substantiate business necessity for the language requirement, will increase the likelihood of a favorable outcome. Mere claims without substantial evidence will result in the rejection of the PERM application. It’s important to note that employers cannot assume that the individuals they have business dealings with do not speak English merely because a significant portion of its business works with a particular demographic.

Employers can provide similar evidence to demonstrate that the position will be required to communicate with non-English speaking employees. For example, employers can provide evidence to demonstrate that there are a significant number of employees who speak the foreign language and that those employees are unable to communicate in English. Employers can provide detailed statistics on the number of employees who speak only the foreign language. For instance, if the company has a significant portion of its workforce that speaks Spanish and these employees are unable to communicate effectively in English, the employer can present data showing the number of Spanish-speaking employees and their respective departments.  Testimonies from current employees who speak the foreign language can be provided. These testimonies should detail the necessity of communication in the foreign language to perform the job duties efficiently and to maintain workplace safety and productivity. Employers can present job descriptions and daily tasks that require frequent interaction with non-English speaking employees. For instance, if the job involves supervising a team of workers who only speak Mandarin, the job description should outline specific responsibilities that necessitate communication in Mandarin. Evidence of business operations that require the use of the foreign language can also be included. This can include internal communications, training materials, safety instructions, and standard operating procedures that are in the foreign language.

Best Practices:

• Ensure that the foreign language requirement is genuinely essential for the job and not just a preference: Employers must conduct a thorough job analysis to determine if the language skill is critical for performing the job duties effectively. This involves evaluating the daily tasks and responsibilities associated with the position and identifying situations where communication in the foreign language is indispensable.
• Gather robust evidence and detailed explanations to support the necessity of the language requirement: Compile comprehensive documentation to justify the language requirement. This can include data on the business operations, customers, number of non-English speaking employees, specific job duties that require the foreign language, internal communications, training materials, and any other relevant evidence that demonstrates the critical need for the language skill. Employers should prepare a business necessity statement at the outset of the process to ensure the company can overcome an audit.
• Consult with an immigration attorney to prepare a strong case and navigate potential challenges during the PERM process: An experienced immigration attorney can provide valuable guidance on whether an employer’s justification for a foreign language requirement will withstand scrutiny by the DOL. They can help gather and present evidence effectively, anticipate potential objections from the DOL, and ensure compliance with all legal requirements, thereby increasing the likelihood of a successful PERM application.

 Conclusion

Including a foreign language requirement in a PERM application is a complex process. Employers must provide substantial justification and thorough documentation to demonstrate the necessity of the foreign language for the job. By following best practices and ensuring compliance with DOL regulations, employers can successfully include foreign language requirements in their PERM applications, helping to secure the right talent for their business needs.

If you have any inquiries or need assistance with your PERM application, please schedule a consultation with one of our experienced immigration attorneys at Reddy Neumann Brown PC.

By: Krystal Alanis

Krystal Alanis is a Partner at Reddy Neumann Brown PC with over 12 years of experience practicing U.S. business immigration law. Krystal manages the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment-based green card matters. She also works on a variety of nonimmigrant work visas (e.g. H-1B, TN, L-1). Krystal serves as the American Immigration Lawyers Association Houston Section Co-Chair, has hosted multiple educational webinars regarding a variety of Employment-Based Immigration topics, and has been interviewed by Forbes, where she discussed the PERM Labor Certification program and the challenges high-skilled immigrants and employers face in light of the unprecedented delays that have plagued the PERM program for years and was quoted in Bloomberg Law, where she provided insight into the effects of tech layoffs on the employment-based green card process for H-1B visa holders. Krystal has also been a speaker at the University of Houston where she discussed the variety of immigration-related options available to F-1 international students beyond graduation.