When an employer requires that an employee for labor certification speak a language other than English, it is generally considered by the Department of Labor as unduly restrictive. Such a requirement must be justified as a "business necessity" if certification is to be considered.

Two Prong Test

There is a two prong test for labor certification involving a foreign language requirement. The first prong looks to the employer's business, including clients, work force, or suppliers who speak a foreign language. One way to establish this prong is to show that a significant amount of the employer's business is conducted in a foreign language; however, there is no bright-line test on what is considered" significant."

The second prong requires that the employee's duties will necessitate the employee to communicate or read in that foreign language. The employer will need to show that the need for foreign language skills cannot be met by some other method, e.g., translation or interpreter service, etc.

Past Decisions of The Board of Alien Labor Certification Appeals (BALCA)

The BALCA has held that business necessity for a foreign language requirement was established when almost all of an employer-restaurant’s clients spoke Chinese and many did not speak English at all. The foreign language requirement was essential for the employee to perform his duties as a buyer for the employer. Keep in mind, however, that it is not enough that the employer’s customer’s speak a foreign language but that these customers do not speak English.

The BALCA has also held that a foreign language requirement maybe justified when the foreign language is preferred by a significant portion of the employer’s clientele. However, it was required that the employer establish that the foreign language requirement was related to the employer's competitive position vis-a-vis other businesses offering foreign language services to the same market.

In Matter of Lucky Horse Fashion, Inc., 1997-INA-182 (2000), the employer required two years of experience in the job offered and the ability to speak three Chinese dialects. The employer asserted that all of its workers spoke a dialect of Chinese, and that nearly all its workers spoke very limited English. The BALCA first looked to the Dictionary of Occupational Titles (DOT) to see whether a foreign language requirement is listed as a common requirement for the job (the use of a foreign language is specifically supported for many occupational titles listed in the DOT). If the DOT description of the occupation does not include a foreign language, the employer must establish that, nevertheless, the use of a foreign language bears a reasonable relationship to the occupation (a difficult burden to prove). The BALCA held that both prongs of the business necessity test will generally not be met when the only business necessity for the foreign language requirement is that the foreign language is required in order to communicate with co-workers. TheBALCA’s reasoning is that, to permit this type of practice, is to create a "self-perpetuating foreign labor force that, as a practical matter, excludes all but a few U.S. workers...."

Nevertheless, an employer could still try to make a good faith argument that the reason that the employer’s workforce consists of non-English speaking workers is due to legitimate market forces and not due to any manipulation by the employer. Such an argument has been successful in such cases as Matter of Young's Cleaners,88-INA-361 (1989), Matter of Spanish Broadcasting System Co.,88-INA-374 (1989), Matter of Golden City Chinese Restaurant,89-INA-176 (1990), Matter of Hollytron, 88-INA-316 (1989).

The BALCA has also held that a foreign language requirement was a business necessity when the principal language of the employer’s suppliers was a foreign language.

In summary, the requirement that an employee speak a language other than English will be considered presumptively unduly restrictive. The burden will be on the employer to prove the business necessity of such a requirement. This is often a difficult burden to prove but it can be done.