The Situation

Every now and then a case turns up that tests my assumptions about what is funny ha-ha and what is funny strange. This one was the strange kind, and it was not even mine to start with. A colleague at another firm had received a Notice of Intent to Revoke the I-140 petition for an EB-3 skilled worker and brought it to me to answer. Among the asserted revocation grounds was one I had never seen, and have never seen since: the consular officer had determined that the applicant did not speak English.

Here is how the NOIR put it:

“It was also determined that the beneficiary does not speak any English. […] When asked what his job duties would be he had no ideal [sic]; all he could say was that he was going to be a distribution manager.”

The examiner who built the notice from the consul’s report did not seem troubled that none of it tracked any statute or regulation governing immigrant visas for skilled workers. He had parroted the consul’s recommendation, sent the NOIR, and called it a day. Answering one can be boring. This one, I confess, was a pleasure to prepare.

The Requirement That Wasn’t There

The law here is not complicated, which is part of what made the notice so remarkable. Here is how the regulation defines a skilled worker, at 8 C.F.R. § 204.5(l)(2):

Skilled worker means an alien who is capable, at the time of petitioning for this classification, of performing skilled labor (requiring at least two years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States. Relevant post-secondary education may be considered as training for the purposes of this provision.

Training or experience, work that is not temporary or seasonal, a job for which no qualified U.S. worker was available. English is not in it. Nor was English anywhere in the labor certification the Department of Labor had approved for the job, the document whose only function is to spell out, in advance, every qualification the position demands. The job was managing produce distribution, and the notice that set out to revoke the petition actually listed the job duties: keeping records of prices and sales volume, preparing the daily reports, holding inventory, settling differences between the customers and the company, supervising other employees, with four years’ experience the only threshold. English was not a requirement.

That absence is not an accident of drafting. A labor certification is not the employer’s wish list; every requirement on it is also a filter, a ground on which a U.S. worker may be refused the job, so each one must be normal for the occupation or justified to the Department of Labor as a business necessity. Had this employer explicitly required English on the labor certification, it would have had to prove the work could not be done without it and answer for every U.S. worker screened out for lacking it, based on fair, objective and verifiable criteria. Good luck with that.

Where Congress has wanted English, it has built a way to measure it. No employment-based immigrant is required to show English proficiency, from EB-5 through EB-1. In theory a foreign executive could immigrate to run a Fortune 500 company without speaking a word of English. The one exception is health care: a visa-screen worker, a nurse or a physical therapist, must pass an English examination before receiving a visa (INA § 212(a)(5)(C)(ii); 8 C.F.R. § 212.15(g)), and a foreign physician must show competence in oral and written English (INA § 212(a)(5)(B)(ii)).

English can still reach a worker sideways, through a state license the job demands, for example, but never through the visa process. This job demanded no license.

U.S. employment immigration is built on many fundamental assumptions or legislative blanks like these. English language proficiency is irrelevant, assumed, or taken for granted. What counts for employment immigration is education, work experience, and documented professional ability. In other words, it’s what you bring to the table, not whether you can speak at the table.

A New Ground of Inadmissibility, Invented at the Window

With no standard in the law, the consul supplied his own. The State Department’s manual for consular officers is explicit, at 9 FAM 302.1-5(B)(9):

Proficiency in English is not essential to certification under Schedule A nor for job offer positions, except for graduates of medical schools. Evaluate the importance of English proficiency, particularly for secretaries, stenographers, and teachers, in relation to the public charge provisions in INA 212(a)(4). Proficiency in English is essential if an employer specifies on Part A of Form ETA-750, Application for Alien Employment Certification, that knowledge of English is required for satisfactory job performance, or in the case of a graduate of a medical school.

This man was no graduate of a medical school, and his employer had written no English requirement into the certification. The consul judged his English by ear and made the result a ground of inadmissibility: failure to speak English to the satisfaction of the consular officer. The notice said so outright: the beneficiary “does not have the language and qualifications to work in the United States.” The trouble with letting an officer invent qualifications at the interview window is that such abuse has no stopping point. To refuse this man his visa because the officer was dissatisfied with his English is no different in kind from refusing it because he is too short, or walks with a limp, or has less than perfect eyesight. By that method the officer might as well have asked him to do push-ups and recommended revocation when he tired.

The Grounds That Came with It

The notice’s other grounds were no better. The work-experience letter it waved off as coming from an unknown person, with no name, place, or date, was in fact signed, dated, and specific; USCIS had described a document nobody had read. The man’s confirmation that he would be a distribution manager, the title on his own approved labor certification, was held against him; he had given the suspiciously right answer. His prior employment, the notice said, could not be verified, with no word about what verifying it had involved; but the market he had managed stood in Sadr City, in Baghdad, and by 2008 the fighting had reduced it to an abandoned lot, the streets around it under fire, as CNN reported that spring. The consulate had demanded he prove a place a war had destroyed, and counted his failure against him.

An Assumed National Language

I added one more point, which I could not in good conscience keep from USCIS. The United States had no official language when I wrote the response; it would not have one until 2025, and then only by executive order. A few states had named English their own; the one where this man was bound to work had not. He had been judged against a national language the nation itself had not declared, by an officer enforcing a rule no one had written.

The Result

USCIS withdrew the notice and let the approval stand. The file went back to the consulate for a second interview. I have heard nothing about it since. After so many words, silence is the best answer.