PERM: Properly Posting a Notice of Filing
The U.S. Department of Labor (DOL) resorts to using technicalities to deny PERM cases. To prevent a denial based on improper posting of a Notice of Filing (aka: in-house posting), this article focuses on NOF posting requirements.
Purpose of the NOF
The purpose of the NOF is to provide the PERM employer’s US workers with notice that the company is filing a PERM application. The NOF does not name the beneficiary, but provides information regarding the position (title, job description, job requirements, job site, salary) and provides the Department of Labor’s contact information in case an employee wishes to provide “evidence bearing on the application.”
Where Should the NOF be Posted
Regulations require the NOF to be posted at the facility or location of the employment for 10 consecutive business days in conspicuous places. If an employer occupies multiple buildings, the NOF should be posted at the building of the position at issue. Appropriate locations include the immediate vicinity of the wage and hour notices or occupational safety and health notices.
In addition, the employer must publish the notice in any and all in-house media, whether electronic or printed, in accordance with normal procedures used for the recruitment of similar positions in the employer's organization. For example, companies that utilize an intranet to disseminate information to its employees would need to post the NOF on its intranet if the intranet is normally used to announce job openings.
Posting the NOF at a public and conspicuous location is exactly the point of this requirement. Employers should not purposely post at locations where its employees cannot readily read the NOF.
Can I Protect Against Exposing Salary Information?
The regulation is clear that the rate of pay must be on the NOF, and the rate of pay must meet the prevailing wage for the occupation and work location. However, a wage range can be used if the employer wishes.
Although a range can be used, the lower-end cannot be less than the PERM wage, which is the beneficiary’s wage or prevailing wage, whichever is higher. The top-end can essentially be any figure. For example, if the PERM beneficiary’s current wage is $90K and prevailing wage is $95K, the wage rate on the NOF must be $95K, or if a range is used, $95K to $110K (or any figure above $95K).
Immigration Law Group can review your procedure to improve compliance with the many technical rules involving the PERM process. Contact your attorney to arrange a review.