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Foreign Language Requirement In PERM Applications

Job Requirements for the Labor Certification under PERM: Can a Foreign Language be Required?

Before an employer can hire a foreign national to work permanently in the U.S., it must obtain a labor certification from the Department of Labor (DOL). The labor certification is the initial step in filing for an immigrant petition and serves the purpose of the DOL certifying to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS) that there are no qualified U.S. workers able, willing, qualified and available to accept the proffered job and that the employment of the foreign national will not adversely affect the wages and working conditions of similarly situated U.S. workers. This article will generally discuss the state of labor certification rules as they apply to the job-related minimum requirements that can be included in the advertisement for the position. More specifically, we will discuss whether a foreign language may be required in the PERM application process. Our law firm has been successful in requiring foreign language requirements for sophisticated jobs including architects. If you would like to apply such foreign requirement, contact us for a consultation.

Job Requirements Normal to the Occupation

The requirements for the job must adhere to what is customarily required for the occupation in the U.S. For example, if an employer is advertising for a janitor, it cannot require a PhD in Astrophysics and ten years of experience as an astronomer as those requirements would not customarily be required for a janitor in the U.S. Further, an employer may not tailor the job requirements to the foreign worker's qualifications. In that regard, the employer must prove that the job opportunity is described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.

If the company is arguing for business necessity, then the DOL will audit the PERM file. Hence, special care must be given to ensure that the job requirements are not unduly restrictive and adhere to what is customarily required for the occupation or else be ready to defend your position by documenting appropriate business necessity. A special job related minimum requirement, such as a foreign language requirement, could appear “overly restrictive” albeit necessary for the employer to conduct its business in a normal manner; it may nonetheless trigger a PERM audit. An audit is a request by the DOL to document your case more fully. Since a PERM audit may pose additional burdens on the employer, it is highly advisable to seek legal assistance if you are filing a PERM case arguing business necessity. Contact our law firm for an initial consultation as we have handled thousands of PERM and immigration petitions on behalf of our clients.

What is Business Necessity?

Before addressing the steps to follow when your job offer contains a foreign language requirement, it must be determined what business necessity means. Essentially, when an employer’s job requirements exceed those normally required for the occupation and/or when they exceed the Specific vocational Preparation level assigned to the occupation as shown in the O*NET Job Zones, the case must be adequately documented as arising from business necessity. The employer must demonstrate that job duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner. In plain English, this means the employer must show that its business requires certain uncommon duties or higher level of education for an occupation in which the DOL does not think are common. As an example, suppose an employer is recruiting for a janitor position. The DOL’s minimum education is a high school diploma or GED and tasks include cleaning, emptying trash, stripping, sealing and finishing floors, cleaning windows and notifying managers of need for maintenance. Suppose that the employer requires the janitor to have a GED and tasks to include everything the DOL lists but also that the worker must be able to lift 50 pounds over his/her head. The employer is in the business of making anvils. As long as the employer demonstrates that the requirement to lift 50 lbs bears a reasonable relationship to a janitor’s work in the context of the employer’s business

Business Necessity: Foreign Language Needed

The PERM regulations allow an employer to include a foreign language requirement if it is justified by business necessity. In order to prove that there is a reasonable relationship to the occupation in the context of the employer's business and a foreign language is essential to perform the job in a reasonable manner, a foreign language requirement must be justified by business necessity based on the nature of the occupation, e.g., translator, or the need to communicate with a large majority of the employer's customers, contractors, or employees who cannot communicate effectively in English.

Documentation Necessary to Establish Such a Business Necessity

If the nature of the occupation requires knowledge of foreign degree, then documenting the business necessity would not be difficult. If foreign language is required because of the need to communicate with a large majority of the employer's customers, contractors, or employees who cannot communicate effectively in English, documentation must include information of the employer furnishing the number and proportion of its clients, contractors, or employees who cannot communicate in English a detailed plan to market its products or services in a foreign country, and/or a detailed plan to market products or services in a foreign country. For instance, our firm represented a large architectural firm who conducted business in a foreign country. The plans, specifications, and other construction documentation had to be in a foreign language. In a situation like this, it was imperative for the architects to issue these documents in the foreign language as a prerequisite for a successful conclusion of the project. In this example, our law firm successfully argued and presented examples of plans and specifications in the foreign language that the requirement is normal and necessary for the employer to conduct its business in an ordinary manner.

Hence, the employer must be prepared to submit 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.

How to Contact Us

If you have questions about an immigrant visa or green card matter, and/or you need help in an immigration process, please contact our attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.

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