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Impact of Equal Pay Transparency Laws on PERM Recruitment Practices

Updated: Dec 22, 2022

Are You Worried About Wage Transparency’s Impact on the Green Card Process?:

Four Points to Consider from Experienced Immigration Attorneys

While the state laws do not change the PERM process specifically, the trend toward wage transparency can change employers’ requirements during the recruitment process. Employers should know that the state wage transparency laws do not change the PERM regulations. Employers should determine if they are subject to their state’s transparency law before starting the PERM process and they should try to file a prevailing wage as early as possible to avoid potential wage transparency issues.

Employers should know that a state wage transparency law does not change the PERM regulations.

Employers should know that a state wage transparency law does not change PERM regulations. The PERM regulations are still the same regardless of what a state enacts. However, Employers should check with their employment attorneys to see if they are in a state with a newly enacted wage transparency law that may affect the way they advertise for all job postings. The state laws will influence beyond just the PERM job posting. Wage transparency laws differ in types of employers included and geographic range covered.

In general, all employers who advertise job postings, including employers who are advertising as part of the PERM process, will need to follow the state transparency law. An employer who advertises for a job and is in a state that has enacted a wage transparency requirement may be in violation of their state or local laws, and subject to fines, if they don’t list the wage in their job ads. Alternatively, PERM regulations do not require the wage to be listed on every recruitment ad to comply with PERM regs. The wage in the employer’s posting at the worksite is the only recruitment effort that PERM regulations require to list the wage. The PERM regulations do not require, for example, that the employer list the wage in the newspaper ads. However, if the state requires wage transparency, the employer risks being out of compliance by not listing the wage in a newspaper ad.

Employers should consult their employment attorneys to ensure their PERM recruitment efforts comply with state laws since the two regulations are separate requirements for the same process.

Employers who engage in the employer-driven Green Card Process should determine if they are subject to a state wage transparency law before they begin PERM recruitment.

Employers who engage in the employer-driven Green Card Process should determine if they are subject to a state wage transparency law before they begin PERM recruitment. This helps to avoid rerunning advertising or being out of compliance with their recruitment effort.

If an employer is in one of the states with new Wage Transparency Laws, they should aim to start the PERM process by filing a PW with DOL as early as possible. DOL may take approximately 9 months to issue the prevailing wage determination which makes early filing important in the timeline. Before wage transparency laws, employers routinely began recruitment (advertising for the PERM jobs) before the PW was issued by DOL to get a head start in the process. A head start in recruitment is possible because PERM regulations do not require that newspaper ads, for example, list the wage offered. PERM regulations only require the wage be listed on one recruitment effort, the Posted Notice at the worksite. For this reason, employers could safely run their newspaper ads without listing the offered wage while they were waiting on DOL to issue the PW determination. Now, if the employer is in a state with a new wage transparency law, the employer may want to wait for DOL to issue the PW determination because newspaper ads can be very expensive. If the employer were to list a wage slightly lower than the wage determined by DOL in the PW determination, the employer would need to run that newspaper ad again.

Employers should regularly check the list of states affected by some wage transparency law to ensure compliance.

Employers should check with their state employment lawyers for updates and for specific requirements within each state or locality. Some states have laws that only require the wage to be disclosed to job applicants upon request or at the time of the job offer, for example. Some states have declined to pass a statewide legislation, but municipalities have taken the initiative. Here is a list of some states or localities with some type of wage transparency requirement:

  • California (originally passed in 2018 (Link), with updated legislation going into effect January 1, 2023 (Link)

  • Colorado (as of January 1, 2021) (Link)

  • Connecticut (October 1, 2021) (Link)

  • Maryland (October 1, 2020); Nevada (October 1, 2021) (Link)

  • Nevada (October 1, 2021) (Link)

  • New Jersey (April 13, 2022) (Link)

  • New York (September 1, 2022) (Link) (November 1, 2022) (Link), and (November 6, 2022) (Link)

  • Ohio (March 1, 2020 (Link), (June 25, 2020) (Link)

  • Rhode Island (January 1, 2023) (Link)

  • Washington (January 1, 2023) (Link)

Regardless of which state, Employers should try to file the PW as soon as possible to avoid delays and to retain their employees.

Employers with non-immigrant visa workers should not wait to file a PW for starting Green Card process. They should file the PW as soon as possible because if their state is subject to a wage transparency law, they may need to wait to start recruitment until after the PW is issued, rather than start recruiting early. With a tight labor market for top talent, foreign workers want certainty. They want to know that their employers are starting the GC process in order to retain them. The GC process is one of the best retention tools for employers. Employers should discuss with their immigration lawyer when to start recruitment, and a decision should be made on a case-by-case basis. In cases where the offered wage is going to be at the top of the PW scale, then starting recruitment before the PW is issued, may still be a good idea; but if the wage offered is closer to the lower end of the PW wage range, then it might be best to consider waiting until the PW is issued to start recruitment.


Leyla McMullen

Business Immigration Lawyer

Mdivani Corporate Immigration Law Firm

NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that may be applicable to your situation

The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.

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