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Balancing Act: Managing PERM Requirements and Equal Pay Transparency Laws for Foreign Workers

The first step a U.S. employer must complete when sponsoring a foreign worker for a green card is obtaining an approved Labor Certification, also commonly known as PERM. This is a detailed and time consuming process in which the U.S. employer must craft a position for which the foreign worker will be sponsored for and test the U.S. labor market to demonstrate that employment of the foreign worker will not displace any U.S. workers. At its core, the goal of the PERM process is to show that there are no “able, willing, qualified, and available” U.S. workers to fill the position which the foreign worker will be employed in.

The PERM process is known for its length and strict rules—if any mistakes occur, no matter how small, the process may need to start over or risk denial. Recently, a new challenge has emerged: Equal Pay Transparency (EPT) laws. These laws, enacted by various states and local jurisdictions, require employers to disclose the minimum and maximum wage offered for certain positions in their job postings. This differs from federal PERM regulations that only require this information be included in the Notice of Filing.

Further complexity arises as EPT laws vary widely by location. They differ on which jobs and employers the laws actually apply to, what details must be disclosed in the postings, who can file complaints, and what penalties may be imposed for non-compliance. The lack of clear guidance from the Department of Labor and from jurisdictions with these laws complicates matters further. The states and local jurisdictions have not provided any guidance on how to comply in the PERM context.

Employers must now navigate these conflicting requirements. Until guidance is provided from the appropriate authorities, steps must be taken to ensure compliance. First, employers must determine whether or not a wage transparency law is in effect based on their location and/or the location of its owners and/or employees. Second, employers must then determine if the job posting in question is actually subject to the local EPT law. Employers must then carefully review the local laws to ensure compliance. Best practice would be not only to involve your immigration team in the determination but employment and labor counsel as well.

Currently the following states and local jurisdictions have active EPT laws: California, Colorado, Hawaii, New York state, Nevada, Washington state, New York City, NY, Jersey City, NJ, Albany, NY, and Washington, D.C. (pending).

The following states have active EPT laws that have not yet gone into effect but will go into effect in the near future: Illinois on 01/01/2025, Maryland on 10/01/2024, and Minnesota on 01/01/2025.

Connecticut, Maine, Massachusetts, and New Jersey have proposed bills, but an EPT law has not yet been passed.

Because the impact of these EPT laws on the PERM process is still uncertain, staying informed and seeking expert advice is crucial for employers. Working with a qualified and knowledgeable immigration team can help employers form best practices and strategies to ensure compliance with not only federal PERM regulations, but local laws and guaranteeing the recruitment process was completed in good faith.

For over 25 years, Reddy Neumann Brown PC has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when navigating the PERM labor certification process. If you are in need of a U.S. work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration office directly at 713-953-7787 or schedule a consultation.

By: Jessica Palarca

Jessica Palarca

Jessica Palarca is an Associate Attorney in Reddy Neumann Brown PC’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.