The question of a foreign language requirement proposed an existential question to an Attorney who consulted with me recently.
The 9089 stated "Yes" to the question, "H-13" which asks, "Is knowledge of a foreign language required to perform the job duties?" The questions continues, "If the answer to this question is 'Yes,' the employer must be prepared to provide documentation demonstrating that the language requirements are supported by business necessity."
The question seems simple enough, however, in the case I am discussing, the Employer answered "Yes" but did not indicate any foreign language anywhere on the form. The documents in the record file also do not speak of any language requirement.
I reviewed the case: the 9089, audit, response to audit, and denial, including the Notice of Filing, advertising, prevailing wage request and determination. To my surprise, I could not find any reference to the language requirement. In fact, I could not determine which foreign language the Employer required, or how, when or why it would be used.
Not surprisingly, the DOL denied the application, but I why?
The first basis for denial was that the advertisement did not contain the language requirement, and was therefore defective, since it did not apprise the workers with sufficient specificity about the job.
This is certainly true, but I wondered whether, as a matter of law, a foreign language requirement must be stated in an advertisement.
The PERM Rule requires travel requirements to be in the ad, but not foreign language requirements, to be in the ad, so I thought that using common sense (and if not, then the rules of statutory construction which is common sense codified into law), one could come to the conclusion that if the regulations specifically require travel requirements to be advertised, and not foreign language requirements, then it could not be possible that an application can be denied for not having the foreign language requirement in the ads. If the agency had intended the inclusion of the foreign language requirement in the advertisement to be a requirement, then it would have so stated.
The CO went on to deny the application for additional reasons, all having to do with the foreign language requirement, including the fact that the requirement was not in the NOF, the prevailing wage, the 30-day job order, etc.
At first glance I thought that the DOL was probably right, but after thinking about this for several days, I came to the conclusion that the application should not have been denied for lack of the language requirement in the ad.
The DOL has long held (for public policy reasons) that if an employer does not include job requirements in the ad, there is no harm to US workers. In fact, the lack of requirements in the ad opens up the job to a wider pool of applicants, and it is the Employer wo may be prejudiced, by an excessive number of unqualified applicants. The Employer would have to interview the referrals, and demonstrate why they are not able to perform the job duties.
In the present case, however, the only possible hint as to what kind of language requirement was needed is the fact that the Employer is the subsidiary of a French company in the U.S.
I say hint, because the name of the company does not clearly convey that it is French. One would have to research on the internet or the corporate records to discover this fact.
As the Employer's attorney explained, they answered "Yes" to the language requirement question, because the Employer thought that the (French?) language might be useful. Of course, anyone who has completed PERM 101 knows that an Employer may not couch preferences in terms of necessity, but leaving that aside, there was no other mention of a foreign language in any part of the PERM record file.
This brings us to the next stage of our analysis. It seems that the requirement, as stated by the Employer, was not "perfected." By this, I mean that the statement of a foreign language was only indicated by the "Yes" answer to H-13, but the requriement was never defined. The Employer would have to complete or perfect the requirement, if any, by placing the specific language in the context of the job description, requirements, special requirements, or in some place on Form 9089 where the use and requirement of the language would be identified.
In its current form, the foreign language requirement was not really a requirement, but an undefined fragment that at best stated an inchoate desire to include the requirement.
I advised the Attorney for the Employer not to appeal but file a new application -- and this does seem to be the most expeditious way to handle the problem -- but I would also like to underscore that the DOL Denial (because the language requirement was not in the advertisement) is not in accordance with the regulations or policy of the Department of Labor, and that if the Employer wishes to appeal, it would be interesting to see how BALCA would decidethe case.
One could argue to BALCA that the answer "Yes" was really harmless error, or no error at all, since the unidentified foreign language in H-13 was never implemented in the PERM application.
The error could also be traced to the DOL, not the Employer, by arguing that the PERM form should prompt the Employer to state in a separate question, immediately following H-13, which language isrequired! Since the form does not require this to be stated, it seems that Employer made no genuine error by providing a partial response, and the application should have been approved, not denied. There was no prejudice to any US workers, and on the face of the application, there is no foreign language requirement at all!