Can a foreign national receive a raise during the PERM process?
Yes. However, it’s important to know when the raise will go into effect to determine whether one will encounter any ramifications with the timing of the increase. You should be strategic in advising the sponsoring employer contact as to when the most opportune time is for granting a raise to their foreign nationals that are currently within the PERM process.
A foreign national can receive a raise at any time during the PERM process up until the point of initiating the active recruitment campaign. At that point, it’s important to consult with the sponsoring employer contact regarding any anticipated merit increases prior to filing the PERM application. This is important because if the salary were to change during the recruitment campaign, then the recruitment efforts that list a wage – either already completed or that are currently in process – will need to be redone. Typically, this includes both the job order that is posted with the state workforce agency (SWA) – assuming a salary was listed; some SWAs require a salary while others do not – AND the physical Notice of Filing/Internal Posting Notice, which requires a salary by regulation.
For the PERM process, an employer is not allowed to recruit at a salary that is less favorable to a U.S. worker. The ideal situation or rule of thumb is to postpone any salary changes until after the PERM application has been filed with the Department of Labor (DOL).
What happens when a foreign national receives a salary increase after the recruitment campaign but before filing the PERM with the DOL?
If you were to list the updated salary on the 9089 form prior to filing the PERM application, you will receive a denial, if audited. In this situation, the certifying officer would see a lower salary on the internal posting notice than what was listed on the 9089. To prevent this, another recruitment campaign for all efforts that listed a wage would need to be redone using the higher salary. Then, once the cooling off period/quiet time expires, file the 9089 listing the higher salary, which would now match the recruitment efforts.
Practice tip: Make sure all other recruitment efforts are still valid at the time of filing. They are only valid for 180 days.
What happens when a foreign national receives an increase after the PERM is filed but before the certification?
The salary increase cane be captured on the I-140 form when filing the Immigrant Visa Petition with United States Citizenship and Immigration Services (USCIS).
