LABOR CERTIFICATION CASE COMES UNDER FIRE Last month the Board of Alien Labor Certification Appeals (BALCA) issued an opinion that has met with widespread disapproval from the immigration bar and employers who depend on labor certifications to maintain their businesses. In the case, which involved an employer called Lucky Horse Fashion, the employer was trying to obtain a labor certification for a Sewing Machine Repairer. One of the job requirements listed in the advertisement was that the applicant speak three dialects of Chinese Chao Chow, Cantonese and Mandarin.
The Certifying Officer (CO) issued a Notice of Findings in which the foreign language requirement was found to be too restrictive. The employer was given the opportunity to rebut this finding by showing that the language requirement was a business necessity. The employer submitted evidence that its entire workforce spoke a Chinese dialect, and that few of them spoke any English. It also said that to properly repair a sewing machine, the repairer had to be able to speak to the operator in detail, and that sign language was not a sufficient means of communication in this regard. The employer also stated that currently, he had to be present to translate between workers and repairers, a costly and timely process. Nonetheless, the CO found that the employer had not established a business necessity, and denied the application for certification on the grounds that the employer had improperly rejected an applicant on the basis of the language requirement.
The employer requested that the BALCA review the decision. Under Department of Labor regulations, unless an employer can establish a business necessity, the job requirements must be found in the Dictionary of Occupational Titles and cannot include foreign language requirements. Business necessity is established through showing that the requirement bears a reasonable relationship to the job, and is essential to perform the duties of the job.
Whether the requirement bears a reasonable relationship to the job depends on description of the job in the Dictionary of Occupational Titles. Some DOT descriptions include a foreign language requirement, but Sewing Machine Repairer is not one of them. The evidence of business necessity presented by the employer was all based on the limited English skills of the pre-existing workforce. Despite this, there was, according to the BALCA, nothing about the job that required a foreign language. There is no need for the repairer to deal with customers or contractors who do not speak English, there was no evidence that the repairer would be required to work overseas, and there was nothing in the DOT code that supported a foreign language requirement. Although all the co-workers spoke a dialect of Chinese, nothing about their jobs required a foreign language. According to the BALCA, the result of permitting an employer to establish business necessity for a foreign language, solely because all of its employees only speak a foreign language is to create a self-perpetuating foreign labor force that, as a practical matter, excludes all but a few US workers, contrary to the purposes of the Act (creating the labor certification program.
While the foreign language requirement was reasonable to ensure that the employee can perform the job, it failed to meet the first requirement for a business necessity, that the requirement is reasonable in relation to a standard description of the position.
Many have received this opinion with disappointment and view it as an effort by the BALCA to do what Congress has repeatedly failed to do make English the national language. They also feel that the decision ignores what is a fact of life in many parts of the US that there simply are not a sufficient number of workers who speak English, a situation that demands other workers who can communicate with them.
The American Immigration Lawyers Association and the American Immigration Law Foundation both worked with the employer in this case. The case would be appealed, but unfortunately the employer has gone out of business. AILF would like to have the opinion reversed, but must find an employer whose foreign language requirement was rejected. Any employer readers of this newsletter interested in potentially being a plaintiff can email us at balca-litigation@visalaw.com for more information. < Back | Next > Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. | 
