Foreign Language Requirement in Labor Certifications
Many employers sponsor foreign workers for a green card because of their linguistic abilities. Employers may require the foreign language in order to communicate with customers and clients. Also, given the changing demographics in the workforce, an employer may require such a person to communicate with co-employees who may not be proficient in English.
Filing a labor certification application is usually the first step towards permanent residency in employment-based immigration. The employer must describe the job duties and its requirements as well as demonstrate that it has made unsuccessful attempts to find U.S. workers for the position. Requiring a foreign language in a labor certification application may often prove fatal, unless it can be justified through business necessity. The Department of Labor (DOL) suspects that the job is tailored toward the foreign employee's qualifications when the employer requires unusual requirements.
A recent decision from the Board of Alien Labor Certification Appeals (BALCA) instructs when an employer may or may not require a foreign language in a labor certification application.
The case, Matter of Lucky Horse Fashion Inc., 1997-INA-0182 (August 22, 2000) involved the position of sewing machine repairer, the requirements for which included the ability to speak three Chinese dialects. To justify the requirement, the employer submitted evidence that only ten percent of its workforce could communicate sufficiently in English to convey a machine problem to the repairer. BALCA did not dispute this evidence, instead found that "the result of permitting an employer to establish business necessity for a foreign language, solely because all of its employees only speak a foreign language is to create a self-perpetuating foreign labor force that, as a practical matter, excludes all but a few US workers..."
BALCA relied on the two prong-business necessity test in Matter of Information Industries, Inc., 1988-INA-84 (February 8, 1989) to justify a restrictive job requirement:
(1) whether the requirement bears a reasonable relationship to the occupation, in the context of the employer's business; and
(2) whether the requirement is essential to perform the job duties in a reasonable manner.
In Lucky Horse, BALCA insisted that the employer satisfy both prongs of Information Industries test, especially the first - i.e. whether the foreign language requirement bears a reasonable relationship to the occupation.
BALCA first looked at the Dictionary of Occupational Titles (DOT) to ascertain if the job description supported the use of a foreign language. If the DOT did not support the use of the foreign language, "the employer's burden of proof is compounded," according to BALCA.
BALCA drew a clear distinction between the employer's need to communicate with "clients, customers and contractors" and the need to communicate with the employer's own employees. Communication with "clients, contractors and customers" may clearly be related to the occupation itself. However, in situations where business necessity is to be established upon a foreign speaking workforce, such cases are a few and dependent upon satisfaction of both prongs of the Information Industries business necessity test.
Interestingly, in Lucky Horse, BALCA suggested in a footnote that an employer may justify "lawful market forces" for its special language need due to a non-English speaking workforce.
The "lawful market forces" exception was discussed recently in Sunrise Floor Systems, 2000-INA-58. Sunrise Floor Systems filed a labor certification for the position of a Janitorial Supervisor and required the qualified applicant to speak Spanish. The employer provided evidence that in Southern California many of the workers performing general labor are from Mexico and Guatemala, and do not speak English. To illustrate the point, the employer demonstrated that San Diego is essentially a bilingual city, and alleged that Pacific Bell had recently started giving telephone subscribers the option to receive bills in either English or Spanish, and that on million households had opted for the bills to be printed in Spanish.
BALCA remanded the case to allow the employer to provide an opportunity to provide independent documentation concerning the nature of the workforce in Southern California but cautioned that the employer would not succeed if the workforce was made of illegal aliens.
Lucky Horse and its developing progeny instruct employers that a foreign language requirement for purposes of communicating with other employees could lead to a denial. On the other hand, the DOL would be more lenient with a foreign language requirement if it relates to the position itself. For instance, a foreign language requirement would be justified if the position requires the foreign employee to travel to foreign countries and communicate with clients or customers.
We need to also see how the "lawful market forces" exception develops as the demographics in the United States continue to change. Employers will have an increasing number of employees who do not have proficiency in English. It would then be incumbent upon an employer to find people who can act as a go-between between the workforce and management. Let us hope that the "lawful market forces" exception in Lucky Horse swallows the rule that an employer cannot justify a foreign language requirement due to a non-speaking English workforce.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is Vice Chair of the American Immigration Lawyers Association's National Labor Department Liaison Committee, trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or firstname.lastname@example.org.