Department of Labor Proposes Rule to Increase Wage Levels

On March 26, 2026, the US Department of Labor (DOL) published a Notice of Proposed Rulemaking to revise the methodology for determining prevailing wage levels for the H-1B, H-1B1, and E-3 visa programs, as well as the PERM labor certification process. Comments on the proposed rule are due 60 days after its publication in the Federal Register on March 27. The rule would not become effective until it has completed the formal notice-and-comment rulemaking process, which typically takes several months.

Background

Employers are required to obtain a certified Labor Condition Application (LCA) for all H-1B, H-1B1, and E-3 visa sponsorship petitions and a Prevailing Wage Determination (PWD) for an employment-based Green Card through PERM labor certification. The Prevailing Wage Determination is based on a specific occupation, including the job duties, required experience, and location in which the foreign national will be employed. The DOL relies on the data provided by the Bureau of Labor Statistics’ Occupation Employment and Wage Statistics (OEWS), which produces employment and wage estimates for approximately 830 occupations across approximately 530 metropolitan statistical areas (MSAs) based on a survey of employers. The OEWS uses the following four wage levels: 

• Level I: Entry Level
• Level II: Qualified
• Level III: Experienced
• Level IV: Fully Competent

Proposed Changes

DOL has proposed to significantly increase the corresponding percentile levels across the four wage levels. The proposed changes can be seen below:

Stated DOL Rationale for the Changes

DOL offers the following reasons for the proposed changes:

• “Better align prevailing wage levels with the wages paid to U.S. workers who are similarly employed in the occupation and area of intended employment.”
• “Strengthen program integrity by reducing the incentive for employers to use these programs to replace, rather than supplement, U.S. workers by employing lower-paid alien workers.”
• “Enable the Department to more effectively ensure that the employment of immigrant and nonimmigrant workers admitted or otherwise provided one of the covered statuses does not adversely affect the wages and working conditions of U.S. workers.”

Impact of the Changes

The proposed rule would require employers to pay a DOL-estimated $6.5 billion in additional annual wages to foreign employees. The proposal is roughly increasing the current Level I, II, and III wages to the next wage level, and is significantly increasing the minimum annual wage paid for fully qualified employees. DOL estimates that “the proposed wage level adjustments would increase the average certified wage by approximately $14,000 per year.”

This rule will likely hinder US employers in their ability to hire needed talent who would be sponsored for H-1B or E-3 visas. 

The proposed rule would not eliminate the ability for an employer to seek a private wage survey that is appropriate to the position and the location of employment.

The proposed rule would apply only to pending PWD applications as of the effective date of the rule, as well as to new LCAs and PWD requests filed on or after that date. The rule would not be retroactively applied to previously approved PWD or LCAs.

Please contact a member of the Mintz Immigration team for more information: https://www.mintz.com/industries-practices/immigration.

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