More states, municipalities, and localities have imposed or continue to impose pay transparency requirements, specifically requiring employers to disclose a position’s pay range and offered benefits in job advertisements and postings. States like Minnesota, Illinois, California, and Washington have enacted pay transparency requirements that require employers to disclose the pay range in job advertisements and postings. New Jersey’s new pay transparency law went into effect on June 1, 2025. Vermont and Massachusetts are set to go into effect on July 1, 2025, and August 1, 2025, respectively. Unfortunately, these new requirements have created challenges for employers seeking to sponsor permanent residents, as the federal government has imposed its own pay transparency requirements upon permanent residency postings, which do not coordinate with state and local regulations. Employers must comply with both federal regulations and state and local regulations, which is a challenge. Additionally, the Department of Labor has not provided specific guidance on navigating wage transparency laws in the PERM context.
For most positions, employers seeking to sponsor a candidate for permanent residence in the United States are required to undergo a multi-step process called the Labor Certification, or Program Electronic Review Management (PERM) process. The purpose of the PERM process is to show that there is no qualified, willing, able, and available U.S. worker who can fill the foreign worker’s position before permanent residency is granted. It is partly to show that a foreign worker will not displace U.S. workers or adversely affect the wages or working conditions of U.S. workers. It is to protect the U.S. worker. As part of the PERM process, the employer must conduct an extensive recruitment campaign.
The PERM regulations do not require employers to include salary and benefits information for the position in their recruitment, but they require employers to provide notice to current employees that contains the “rate of pay” for the position offered. The “rate of pay” must be at or above the Department of Labor’s prevailing wage paid to similarly situated U.S. workers. Regulations state that advertisements cannot contain a wage rate lower than the prevailing wage rate and cannot contain wages or terms and conditions of employment less favorable than those offered to the foreign national. This creates challenges for employers on what to include as the wage range in advertisements and job postings.
Complying simultaneously with the PERM regulations and state and local pay transparency regulations can be difficult. The Department of Labor’s prevailing wage is often substantially higher than an employer’s salary range for U.S. workers performing similar jobs, so an employer may be faced with having PERM postings and advertisements with much higher salary ranges than non-PERM postings and advertisements. For PERM positions, the employer does not need to pay the employee the prevailing wage until the employee is approved for permanent residence, which can take two to ten years, depending on the foreign worker’s native country. For non-PERM positions, employers post a wage rate that would be provided to the applicant immediately following hire, which is a “good faith” estimate.
The Department of Labor has not issued guidance on how employers can navigate the pay transparency laws in the PERM context, which makes it a challenge for employers. States and localities impose different requirements, such as requiring information regarding benefits or incentives compensation. Additionally, many employers are allowing their employees to work remotely from different states. Some pay transparency laws apply to situations where a worker “could” perform the job where the employer has no physical office in the jurisdiction. With these differing requirements from states and localities, and no official guidance, it becomes difficult for employers to comply with all the pay transparency requirements and for attorneys to provide practical advice to employers.
If a state or locality has a pay transparency law that requires a wage range, employers must include the wage range and benefits information (if necessary) in all PERM postings. For remote positions, it may be best to comply with pay transparency laws and include the wage range and benefits information, even if the location where recruitment is taking place has not enacted pay transparency laws that require a wage range in its advertisements and job postings. Pay transparency laws are evolving, and more jurisdictions are enacting pay transparency laws that require employers to post a wage range. Employers that sponsor workers for permanent residency should carefully consider the interaction between their pay transparency compliance and PERM postings and recruitment obligations.
