🗞️ The Floor Is Rising: DOL Proposes to Overhaul H-1B and PERM Wage Floors

On March 26, 2026, the U.S. Department of Labor (DOL) issued a Notice of Proposed Rulemaking (NPRM) titled "Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States" (Docket No. ETA-2026-0001). The rule was formally published in the Federal Register on March 27, 2026, and carries a 60-day public comment period closing May 26, 2026.

The proposed rule would overhaul the four-tier prevailing wage structure that employers must meet when sponsoring workers through the H-1B, H-1B1, E-3, and Permanent Labor Certification (PERM) programs. Since 2005, those wage tiers have been pegged to the 17th, 34th, 50th, and 67th percentiles of the Bureau of Labor Statistics' Occupational Employment and Wage Statistics (OEWS) survey. Under the proposal, all four thresholds would shift upward substantially: Level I (entry-level) would move from the 17th to the 34th percentile; Level II from the 34th to the 52nd; Level III from the 50th to the 70th; and Level IV from the 67th to the 88th percentile. In practical terms, this compresses the wage structure upward by roughly one full tier across the board, with entry-level wages landing at what is currently the midpoint for experienced workers.

The DOL's analysis of more than 3 million Labor Condition Applications filed between FY2020 and FY2025 found an average gap of approximately $19,000 between the prevailing wage floors currently assigned to LCA applicants and the OEWS mean wages for workers in comparable occupations and locations. The proposed percentile adjustments are designed to close that gap. Employers will retain the option to use private wage surveys as an alternative to OEWS data where government data does not adequately capture niche labor markets — a flexibility the DOL considered eliminating but ultimately preserved.

The rulemaking was directed by a September 2025 Presidential Proclamation (No. 10973) that also imposed a $100,000 fee on certain H-1B petitions and restructured the annual H-1B cap lottery to favor higher-wage positions. The current NPRM is the first formal prevailing wage rulemaking since a comparable final rule, published January 14, 2021, was vacated by the U.S. District Court for the Northern District of California in June 2021 — the original October 2020 interim final rule having already been set aside by courts for bypassing notice-and-comment requirements. The Biden administration did not pursue further rulemaking on prevailing wages following that vacatur.

If finalized, the rule would apply only to new Labor Condition Applications and Prevailing Wage Determination requests filed on or after the effective date — it would not retroactively affect previously approved certifications. Depending on the volume of comments and any legal challenges, the earliest effective date is estimated to be summer 2026 or later. Affected visa categories include H-1B, H-1B1 (Chile and Singapore nationals), E-3 (Australian nationals), and EB-2 and EB-3 employment-based green card sponsors. The DOL specifically noted that H-1B cap petitions for fiscal year 2027, which must be filed by June 30, 2026, are expected to be unaffected as their Labor Condition Applications would predate the rule's effective date.

Key Points

• Wage floors rise sharply: All four OEWS wage tiers would increase, with estimates of 21%–33% salary increases depending on the level and occupation.
• Broadest impact on entry-level sponsorships: Level I wages would more than double in percentile terms (17th → 34th), most affecting early-career and STEM hires.
• Not retroactive: Previously approved LCAs, prevailing wage determinations, and PERM certifications are unaffected.
• Private wage surveys preserved: Employers may continue using alternative survey data where OEWS does not adequately reflect a specialized labor market.
• Part of a broader policy shift: The NPRM follows a September 2025 Presidential Proclamation that also restructured the H-1B lottery and added new petition fees.
• Legal challenges possible: A comparable final rule from January 2021 was vacated by a federal district court; the October 2020 interim final rule it replaced had also been struck down for bypassing notice-and-comment requirements. The current rulemaking uses the full notice-and-comment process under the Administrative Procedure Act.
• Comment period open: Public comments are due by May 26, 2026 (60 days after March 27, 2026 publication), via regulations.gov, Docket No. ETA-2026-0001.

Source Information

Primary Source Author: U.S. Department of Labor, Employment and Training Administration

Primary Source: US Department of Labor issues proposed rule revising prevailing wage methodology for H-1B, PERM visa programs — DOL Press Release, March 26, 2026

Primary Source Link: https://www.dol.gov/newsroom/releases/eta/eta20260326-0

Supplemental Links

• Full NPRM Text (Federal Register – PDF)
• Federal Register Docket No. ETA-2026-0001
• Submit Public Comments (regulations.gov)
• DOL Office of Foreign Labor Certification
• BLS Occupational Employment and Wage Statistics (OEWS)
• Ogletree Deakins – Employer Analysis
• Duane Morris Immigration Law – Employer Guidance
• CUPA-HR – Higher Education Impact
• SHRM – Workforce and HR Perspective
• Boundless – Wage Tier Modeling for Employers