New Equality Laws Impose Stricter Disclosure Rules on H-1B Employers
Changes in US Equal Pay Transparency (EPT) laws could potentially impact employers’ H-1B labor condition application (LCA) and permanent employment certification (PERM) processes.
From January 1, 2023, new EPT laws have been passed in California, Rhode Island and Washington, imposing stricter disclosure requirements on US employers hiring under the H-1B route. Many other states and localities already have such EPT laws in effect.
Under the rules, US employers within specific areas of the US are required to disclose salary information within job postings, while other localities only require this information to be provided on request when a job offer is made.
The rules have the potential to impact employers’ labor market testing before hiring foreign workers within impacted areas. Employers looking to hire foreign workers under H-1B are required by law (per 20 CFR 655.734 of the federal LCA notice) to disclose the “wages offered” for a position (Notice of Filing), among other details.
Per federal PERM regulations at 20 CFR § 656.17 and 20 CFR § 656.18, the employer does not have to include the wage or wage range in labor market testing activities, such as newspaper or journal advertisements. This information is only required in the Notice of Filing.
However, these requirements do not supersede any applicable EPT rules. As such, where the locality requires, the employer may now have to disclose wage information within job advertisements, as well as the Notice of Filing.
Employers are advised to assess their labor marketing testing activities to ensure compliance with both PERM and LCA regulations and local EPT laws. For example, that wage levels meet the required thresholds (ie at or above the prevailing wage determination issued) and make any applicable additional, mandatory disclosure of employee benefits and other compensation for H-1B LCA Notice of Postings.
Need assistance?
For employers, the challenge will be to manage compliance across PERM programs, given the EPT rules are not taking effect uniformly across the country; they only apply in certain localities.
NNU Immigration are dedicated US immigration attorneys based in London. We provide expert guidance on all types of US visa and nationality applications, including H-1B recruitment and petitioning. For advice and support with your application, contact us.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
