Requiring A Foreign Language Under The New PERM Rule
It is not uncommon for employers to sponsor foreign national workers through the labor certification process because of their linguistic abilities. The Department of Labor (DOL) has usually frowned upon an employer including a foreign language requirement in an advertisement that was used to test the US labor market to establish a shortage of domestic workers. Unless a foreign language requirement was inherent to the occupation, such as a translator or an importer, an employer was required to justify the language requirement by showing it arose from business necessity. The business necessity test was established in
Matter of Information Industries, Inc., 88-INA-82 (BALCA 1989) and applied to any unusual or restrictive requirement to a position, including a foreign language requirement.
In Information Industries, the Board of Alien Labor Certification Appeals (BALCA) determined that a restrictive job requirement could be justified through business necessity by determining:
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.
Thus, in a recent case relying on Information Industries standard, BALCA found that a dental clinic, which required its dentist to speak both Spanish and Persian (in addition to English!), was justified through business necessity because it operates as a walk-in clinic, of which 60% of its walk-in clients speak Spanish and 40% speak Persian.
In the Matter of Super Dental Care, 2000-INA-49, 3 (BALCA 2001). As a walk-in clinic, it was not possible for the employer to know in advance who its potential clients would be and what language they may speak.
Interestingly, the PERM proposed rule sought to eliminate business necessity entirely but would have allowed limited exceptions if the job requirements were consistent with the description of the position under O*NET and where:
1. a US worker was employed in the position in the last 2 years with the same additional requirements;
2. the requirement, other than experience and education, was normal to the occupation, and
3. in the case of a foreign language requirement, it was consistent with BALCA case law.1
Thus, the proposed rule would have eliminated the business necessity test set forth in
Information Industries for restrictive requirements, but could have still preserved the employer’s requirement of a foreign language “consistent with BALCA case law.” This implied that an employer could have still justified a foreign language requirement under the business necessity standard of
Information Industries despite PERM’s new restriction with respect to other restrictive requirements. If the proposed PERM rule got implemented, it could have caused more damage to an employer’s ability to justify a foreign language requirement even if it expected the employer to rely on BALCA caselaw. In 2000, BALCA had begun to interpret a restrictive foreign language requirement in a somewhat different manner from other restrictive requirements, especially in
Matter of Lucky Horse Fashion Inc., 1997-INA-0182 (BALCA 2000).
Lucky Horse involved the position of a sewing machine repairer, the requirements for which included the ability to speak three Chinese dialects. To justify this 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. Although BALCA did not dispute this evidence, it 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…” More importantly, 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.2
Fortunately, the new PERM rule retains the traditional Information Industries “business necessity” standard for all restrictive requirements in a labor certification, including a restrictive language requirement, and also appears to have overruled
Specifically, the new PERM rule provides that a foreign language requirement cannot be included, unless it is justified by business necessity. It goes on to state that:
(h)(2) demonstrating business necessity for a foreign language requirement may be based upon the following:
(i) The nature of the occupation, e.g., translator; or
(ii) The need to communicate with a large majority of the employer’s customers, contractors, or
employees who can not communicate effectively in English, as documented by:
(A) The employer furnishing the number and proportion of its clients, contractors, or employees who can not communicate in English, and/or a detailed plan to market products or services in a foreign country; and
(B) 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 can not communicate in English and why it is reasonable to believe the allegedly foreign-language-speaking customers, employees, and contractors can not communicate in English.3
By including the term “employees” in the above regulation, the new PERM rule appears to have directly addressed the restrictions that BALCA set forth in
Lucky Horse, especially with respect to an employer’s need for a foreign language requirement to facilitate communications among its own employees. The commentary to the PERM rule further confirms that
Lucky Horse has been retired! It agrees with the comments of the American Immigration Lawyers Association and other groups that there are working environments where safety consideration would support a foreign language requirement. The DOL also agreed that in certain industries and occupations language impediments could contribute to injuries to workers.4
Thus, one benefit of the new PERM rule is the shelving of Lucky Horse and its progeny that prevented employers from hiring foreign workers who could speak a foreign language for purposes of communicating with other employees within the workforce. The DOL has finally recognized the increasing number of people in the workplace that speak foreign languages, and the need for the employer to hire a foreign worker who can communicate with them so as to facilitate greater efficiency as well as safety.
1 67 Fed. Reg. 30466, 30472-73 (May 6, 2002).
2 It should be noted, however, that Lucky Horsestill allowed an employer to justify communication with employees under the “lawful market forces exception,” which was discussed in a subsequent decision that it had sired,
Sunrise Floor Systems, 2000-INA-58. In that case, an employer’s requirement that a janitorial supervisor speak Spanish was justified because many workers in San Diego, a bilingual city, were from Mexico and Guatemala and did not speak English.
3 69 Fed. Reg. 247, 77394, (Dec. 27, 2004) (to be codified at 20 C.F.R. § 656.17(h)(2)) (emphasis added).
4 69 Fed. Reg 247, 77352 (Dec. 27, 2004) (to be codified at 20 C.F.R. pts. 655, 656).
This article originally appeared on http://www.cyrusmehta.com/.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
Elizabeth T. Reichard is an Associate at Cyrus D. Mehta and Associates, P.L.L.C. She passed the July 2004 New York Bar Exam and is currently awaiting admission to practice law in New York. She is a 2004 graduate of Case Western Reserve University Law School, where she was the Editor-in-Chief of the Journal of International Law. She is the Secretary of the Board of Trustees of International Partners in Mission, an international non-profit organization working to empower women, children, and youth.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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