By Cecelia Thomas and Kisshia Simmons
Before an employer can hire a foreign national to work permanently in the US, 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 US Citizenship and Immigration Services (USCIS) that there are no qualified US workers qualified and available to accept the proffered job. Also, the employment of the foreign national should not adversely affect the wages and working conditions of similarly situated US workers. The PERM regulations allow an employer to include a foreign language requirement if it is justified by business operations.
A job for PERM purposes will normally have education and experience requirements. For example a Sales Manager position would require a Bachelor’s degree and/or experience in the field. The Department of Labor would consider a job as a Sales Manager, which also required Spanish language as being outside of what the normal position requires. The Department of Labor assumes that the requirement is unwarranted and will require a justification for the Spanish speaking ability. Nevertheless, some businesses might require that Spanish language be part of the job requirements. In instances for example when a large number of clients or vendors are Spanish-speaking, then the language requirement can be justified. It is the employer’s burden to prove that there is a reasonable relationship to the occupation and the foreign language requirement.
In order to substantiate any foreign language justification, the Department of Labor allows an individual to provide evidence substantiating the justification. If foreign language is required because of the need to communicate with a large majority of the employer’s customers or vendors, some appropriate documentation could include the following:
- Information that includes numbers and proportion of its clients, contractors, or employees that are unable to 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.
- Emails with clients or contractors that prove that a substantial amount of business is conducted in the foreign language required.
- Contracts or other legally binding documents that are drafted in the foreign language required.
- Any other information that prove that 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
It is important to understand the foreign language requirements, if you are an employer or the prospective employee seeking a green card. Our firm has significant experience with PERM cases, so please feel free to contact us if you have any questions.