I had a client call me last week with a denied PERM application. His Attorney (the one representing his employer), however, had told him that the DOL had erred and that the denial would be overturned. The reason apparently was the non-inclusion of a language requirement in the recruitment advertisement. I was surprised by the definitive tone that his Attorney had used in reassuring him of the outcome of the Appeal/Reconsideration. I asked him to find out exactly what had happened. In short, I gave him the following questions to ask of his employer/attorney:
- Would his employer be willing to share a copy of the denial?
- Would it be possible to obtain a copy of the ETA 9089?
- Can you arrange to get copies of the audit and response?
- What was entered in H. 13 of Form ETA 9089?
I spoke to him this afternoon. Well, long story short, none of the documents would be provided for additional review. There are two interesting issues that present themselves to the practitioner here:
- What impact did the language requirement have on the approvability of the Application?
- Does the language requirement have to be mentioned in the recruitment advertisements?
Firstly, responding ‘No’ to H12, ‘Yes’ to H13 and entering anything in H14 of the ETA 9089 usually acts as an ‘audit trigger’. H13 is particularly bothersome. Rarely, if ever is a language requirement justifiable for a position within the U.S. labor market unless as the regulations state at 20 C.F.R. § 20 C.F.R. § 656.17(h):
(2) A foreign language requirement cannot be included, unless it is justified by business necessity. 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 cannot communicate effectively in English, as documented by:
(A) The employer furnishing the number and proportion of its clients, contractors, or employees who cannot 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 cannot communicate in English and why it is reasonable to believe the allegedly foreign-language-speaking customers, employees, and contractors cannot communicate in English.
In this case, the Employer is a Consulting Company, requiring a Sales Manager. So, the business necessity argument would at best be hollow. Why then would the Employer insert it into the Application as an afterthought? I fail to see a compelling reason for a language requirement here. In fact a similar situation was discussed in UMC LOGISTICS, INC., 2009-PER-00188 (December 17, 2009). In that decision, the employer contended that it “exports farm equipment and raw material for trailer manufacturing companies in Cuauhtemoc, Mexico,” a German and Spanish speaking community and that its drivers spent as much time in the U.S. as in Mexico. Unfortunately, in that decision, it appears the employer did not provide any corroborating evidence of the business necessity required to support the language requirement. And frankly, in that situation, the reason actually appears justified.
Why would any IT Consulting Company require a Sales Manager to have special language skills? Computer languages perhaps, but pidgin and patois?
Then again, was the foreign language requirement included in error? Could the employer argue that it was clearly an oversight and was not really meant to be included on the application? Perhaps, the employer could submit an affidavit indicating ‘scrivener’s error’? I do not know if there were any other reasons the DOL provided in the Denial other than the fact that it was denied for ‘failing to include the language requirement in the recruitment advertisement.’
We now turn to the second issue. Does the language requirement have to be mentioned on the advertisement? The regulations are silent as to the language requirement.
In fact, I haven’t come across PERM FAQs that speak to this issue either. So, how does the lack of the language on the ads affect U.S. workers? One would imagine it does not. In fact, as long as the employer considered all applicants and did not reject any for lack of the ‘language’ requirement, the employer would be fully justified in putting it on the ETA 9089 and leaving it out of the advertisement.
However, if of course the DOL denied the application for lack of ‘business necessity,’ it would not be considered justified. In other words, the job opportunity did not represent the ‘minimum requirements’ for the position. I guess in this case, I will never know because the employer has dismissed my client’s entreaties to acquire relevant documentation for review.