Common Misconceptions and Insights on Foreign Language Requirements in PERM Labor Certification
By Attorney Jian Joe Zhou (jzhou@hooyou.com)
The PERM Labor Certification is the foundational and most critical step in the U.S. EB-2 and EB-3 (except EB-2 NIW) employment-based green card process. When designing a job position—particularly regarding foreign language（any language other than English） requirements—applicants and employers often encounter misconceptions. As a sensitive element in PERM applications, foreign language requirements demand both justification and careful consideration, as they can significantly impact the outcome of the review process. This article explores the applicable scenarios, the principle of business necessity, and associated risks to help employers craft more informed strategies.
Core Principle: Business Necessity
In PERM applications, any foreign language requirement must be rooted in "Business Necessity." This means employers must demonstrate that proficiency in a specific language is essential to performing the job’s duties, rather than an arbitrary preference. Positions involving language requirements generally fall into two categories:
Language-Centric Roles
Examples include Chinese language instructors, Spanish interpreters, or French trainers. For these roles, the language requirement is inherently tied to the job’s core responsibilities and typically requires no additional justification, as the Department of Labor (DOL) readily acknowledges its necessity.
Roles Where Language Needs Are Less Obvious but Essential
Consider a market researcher working for a company with strong ties to the Chinese market. If the role involves daily interaction with Chinese buyers, suppliers, or partners who exclusively communicate in Chinese—and English proves insufficient for business needs—the employer may justifiably require Chinese proficiency. However, this justification demands robust evidence, such as detailed job descriptions, business context, and specific examples, to prove why the lack of this language skill would hinder job performance.
Risks of Including Language Requirements
Foreign language requirements often attract intense scrutiny from the DOL, particularly for the second category of roles where the need isn’t immediately apparent. Applications specifying such requirements face a significantly higher audit probability—approaching near certainty in some cases. Once audited, employers must submit comprehensive recruitment records, including job advertisements, applicant materials, and supporting documentation, for thorough review.
During this process, even minor oversights can jeopardize the application, such as:
In contrast, applications that avoid audits may sidestep exposure to these vulnerabilities. Thus, employers must carefully weigh the necessity of a language requirement against the heightened risk of scrutiny it invites.
Strategic Recommendations: Compliance and Preparation
Given the DOL’s rigorous oversight of language requirements, employers can enhance their success rate by adopting these strategies:
Ensure Recruitment Compliance
Every step—from posting the job to screening applicants—must align with DOL regulations. Job advertisements should clearly articulate the language requirement and mirror the position’s description.
Compile Robust Evidence
Provide a business overview, client language preferences, and past communication records to substantiate that the language skill is indispensable, not merely advantageous.
Evaluate Risks Prudently
If the foreign language ability is not strictly essential or there are no sufficient documents in supporting the requirement, an employer should not list the foreign language requirement.
Conclusion: Thoughtful Design, Rigorous Execution
While foreign language requirements can be valid and necessary in certain PERM applications, their inclusion must rest on a solid foundation of business necessity. Employers should thoroughly assess their justification and potential risks before filing, ensuring compliance with recruitment protocols and amassing sufficient documentation to withstand DOL scrutiny. By balancing thoughtful position design with meticulous execution, employers can mitigate audit risks and advance their green card applications with confidence.
About the Author
Attorney Jian Joe Zhou is a Managing Partner at Zhang & Associates, P.C., with over 20 years of experience in business immigration law. He has successfully handled thousands of immigration cases, including complex H-1B petitions across various industries.
For legal inquiries, you may contact Attorney Zhou at jzhou@hooyou.com.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, I-485 I-130, H-1B, O, L and J cases. In the past
over twenty years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
Zhang & Associates, P.C.
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(02/224/2025)