English Article 49

We have now started PERM applications. We like to further describe the effect of a Foreign Language Requirement in a PERM application.

Requiring ability in a foreign language is broader than in the RIR context. The PERM regulation adds the need to communicate with co-workers or subordinates to the ways of justifying business necessity for a foreign language requirement

The Regulation states,

"A foreign language requirement can not 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 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."

The PERM form ETA 9089 requires answering question H. 13.(about foreign language requirement) in the affirmative and we believe that marking yes will likely trigger an audit. However, a foreign language requirement is often the reason an alien is hired for a job and is the essence of why it is hard to find a US worker to fill. Therefore, if there is a foreign language requirement, it certainly should be mentioned on the form and on the ad, but the employer should be prepared to justify the requirement.