Employers Must Now Include Express English-Language Proficiency Standard in Certain Job Orders

On May 14, the Department of Labor’s Office of Foreign Labor Certification (OFLC) issued new guidance in the form of Frequently Asked Questions (FAQs), spelling out employer obligations when seeking temporary or permanent labor certifications for foreign workers operating commercial motor vehicles (CMVs). The new guidance emphasizes existing federal English-language proficiency (ELP) standards and clarifies that those standards must now be explicitly reflected in job orders and labor certification filings.

Specifically, employers must now include an explicit ELP standard in applications for jobs that require foreign workers to operate CMVs. Starting June 15, job orders and labor certification filings without compliant language put employers at risk for processing delays or denials.

Pre-Existing Federal ELP Standards Must Now Expressly Appear in Job Orders and Labor Certification Filings for Foreign Workers Operating CMVs

Under existing federal regulations, drivers must be able to:

• Converse with the general public in English
• Understand highway traffic signs and signals in English
• Respond to official inquiries
• Make entries in reports and records

Although many employers already account for these requirements in practice, the DOL’s guidance makes clear that explicit inclusion is now mandatory for all relevant filings involving foreign workers.

Interplay with Existing U.S. Department of Transportation (DOT) Regulations

The DOL’s guidance builds on longstanding regulations administered by the DOT’s Federal Motor Carrier Safety Administration (FMCSA). These regulations prohibit individuals from operating CMVs unless they meet specific qualification standards, including proficiency in the English language. In its role overseeing labor certification filings, the OFLC will now evaluate whether job orders and applications explicitly contain language reflecting the FMCSA’s ELP standard.

The guidance provides model language that employers may incorporate to satisfy the ELP standard:

“The worker must be able to read and speak the English language sufficiently to converse with the general public, understand highway traffic signs and signals in English, respond to official inquiries, and make entries on reports and records.”

Notably, the new guidance clarifies that these proficiency requirements may apply even where a commercial driver’s license (CDL) is not required. For example, certain exempt or agricultural drivers may not need a CDL under applicable regulations, but they may still be subject to federal driver qualification standards, including the ELP standard.

Consequences for Employers Failing to Comply With the New ELP Standard Requirements

The guidance introduces compliance consequences for employers that fail to include express ELP standards in job orders and labor certification filings. In the temporary labor certification context (i.e., H-2A, H-2B, and CW-1 visa programs):

• The DOL may issue a Notice of Deficiency if a filing does not include a compliant ELP standard.
• Processing of the application will be paused until the deficiency is corrected.
• Failure to correct the deficiency may result in denial of the application.

Further, the omission of a compliant ELP standard from an application in the Permanent Labor Certification Program (PERM) may result in a denial determination.

Additional Considerations for Screening of Job Orders and Labor Certification Filings

Beyond the required regulatory language, the DOL encourages employers to consider including additional information in job orders and labor certification filings, including details about the English communication skills expected of CMV drivers, if appropriate. Employers may include language regarding the worker’s ability to answer questions in English regarding:

• Drive time
• Logbooks
• Trip information
• Shipping papers
• CDL information
• U.S. highway signs and traffic controls

Employers may also consider implementing internal screening measures to evaluate applicants’ English proficiency consistent with these expectations. For example, the guidance cautions that drivers cannot rely on translation tools during ELP assessments. Accordingly, employers may include language in their job orders and applications advising foreign nationals that they will not be allowed to use interpretation services, I-Speak cards, cue cards, smart phones, or other similar tools and services during their ELP assessment with inspecting officers. Employers may also provide notice that prospective drivers of CMVs should be able to sufficiently understand and explain the meaning of U.S. highway signs.

Effective Date and Scope of the DOL’s New Guidance

The guidance will take effect June 15, 2026, following a 30-day implementation period. The DOL has indicated that the requirements will apply prospectively, meaning they will apply to filings submitted on or after the effective date.

Why This Guidance Matters for Employers

The DOL clarified that its new guidance is designed to promote consistency among employers hiring foreign workers as CMV operators, while also ensuring the safety of both CMV operators and American drivers. Acting Labor Secretary Keith Sonderling emphasized the importance of enforcing English-language proficiency requirements, stating that “holding employers to existing English-language proficiency requirements is critical to keeping Americans safe on our roads.” He added that the DOL is doing its part to “ensure that foreign workers possess necessary English skills to safely operate commercial vehicles.”

Some members of the transportation industry have expressed concerns about stricter enforcement of these requirements, noting it could bring operational challenges for employers who rely on foreign labor to address ongoing driver shortages.

Key Takeaways for Employers

Employers should keep in mind:

• Job orders and labor certification filings must now expressly include compliant ELP standard language.
• Failure to include the required language may result in processing delays or denials.
• Additional descriptive language and screening practices may help demonstrate compliance and mitigate risk.

Looking Forward

Employers utilizing foreign labor for CMV-related roles should promptly review and, where necessary, update their job orders and labor certification materials to ensure alignment with the DOL’s new guidance. Employers should also be mindful that the guidance only addresses the DOL’s role in the employment-based visa process. It does not comprehensively cover related obligations imposed by other agencies, including the U.S. Department of State and the FMCSA’s internal enforcement policies.

As a result, employers may be subject to additional evidentiary or compliance requirements concerning ELP standards beyond those outlined in the DOL guidance. Employers may wish to evaluate their broader hiring, screening and onboarding practices to confirm consistency with applicable federal standards and ensure that all regulatory requirements are appropriately addressed.

Please contact Fallon Voltolina or any member of Phelps’ Labor and Employment team if you have questions.