New California law imposes job posting requirements that impact employers’ recruitment for alien employment certification (“PERM”) for EB2 and EB3 immigrant visas, as well as H2A and H2B nonimmigrant visas.
Effective January 1, 2023, employers with 15 or more employees are required to include the pay range for the job offered in all of their job postings.
The US Department of Labor already requires that employers seeking a permanent or temporary alien employment certification must list not less than the prevailing wage at the low end of any pay range used on alien employment certification recruiting.
This new law only impacts job opportunities in California and only for employers with 15 or more employees. That said, it may be easier to post wage ranges in all cases just to be consistent. This new law does not define “job posting.”
What constitutes a “job posting” does not seem to be defined in the new law. One might argue, for example, that this requirement extends to H2A and H2B recruitment, but not to H1B LCA, which is merely a whistleblower notice and not recruitment.
While the US Department of Labor only imposes the requirement to reveal the wage offer in the onsite posting, the California wage range requirement applies to all job postings. That means going forward for California jobs, a wage range should be stated on:
- State workforce agency job order;
- On-site posting;
- Newspaper ad; and
- All of the three alternative recruitment efforts for professionals at least to the extent relevant (e.g., companies using a recruiter might submit a copy of the notice given to the recruiter showing the wage range and companies that have an employee referral program would state the wage range on the notice sent to employees).
There are other requirements in the California law, but none of those are related to the alien employment certification process.
New York, Colorado, Connecticut, Maryland, Nevada, New Jersey, and Ohio have a similar, but not identical, requirements.
The EB2 and EB3 immigrant visa classification is the most common pathway for employers in the US to sponsor the immigration of professionals with graduate and undergraduate degrees, as well as skilled and unskilled workers in short supply. DOL certification that the employer was unable to locate US workers qualified and available for the job opportunity is a key step in the immigration process. The wage offered must be equal to or higher than the higher of either: the employer’s pay to similarly employed workers; or the weighted average paid by all employers in the same geographic area to similarly employed workers.
For the full text of the California state law, see https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB1162. For more information, contact your Dentons lawyer or the authors.
