Immigration Law Insights

The Department of Labor ("DOL") has issued a proposal which could affect employers of certain nonimmigrant (H-1B, H-1B1, E-3) and/or immigrant (EB-2/EB-3 PERM) workers. For those affected employers, the prevailing wage for those employees could increase by more than 33% if the rule is implemented.

Background

In various employment-based immigration contexts, sponsors are required to pay foreign workers at a level equaling or exceeding the prevailing wage assigned by DOL. The prevailing wage rate is based on a four-tier scale: Level I (entry), Level II (qualified), Level III (experienced), and Level IV (fully competent). The DOL assigns a prevailing wage level by evaluating the specific occupation (including typical job duties, similar job titles, and job location), experience and education requirements, and special skills and supervisory duties. Each level has an assigned wage based on the salary percentiles determined through wage surveys conducted by the DOL in the area of intended employment.

Proposed Changes and Effect on Employers

Recently, the DOL announced plans to revise the methodology for obtaining the prevailing wage following the issuance of Presidential Proclamation 10973 “Restriction on Entry of Certain Nonimmigrant Workers,” which directed the Secretary of Labor to revise prevailing wage levels under the H-1B program. Although the Proclamation only noted the H-1B visa category, the H-B1, E-3, and EB-2/EB-3 PERM wages will also be impacted.

If the proposed rule is finalized, Level I wages will increase from the 17th to the 34th percentile, Level II wages will increase from the 34th to the 52nd percentile (over 24% increase), Level III wages will increase from the 50th to the 70th percentile (over 20% increase), and Level IV wages will increase from the 67th to the 88th percentile (over 21% increase).

What Should Employers Do?

• Conduct an internal audit to determine if the wages of current or future foreign workers would meet the proposed prevailing wage increases. While the proposed rule only applies to new filings, employers should evaluate if the wages of current foreign workers could be affected at the time of their status renewal.
• Consider moving forward with nonimmigrant extensions as soon as the foreign national is eligible to avoid any negative impacts associated with the new rule. Many nonimmigrant visa classifications impacted by the new wage rule, including H-1B, H-1B1, and E-3, are eligible to file extension six months in advance of their current expiration.
• Consult with immigration counsel who can assist with audits, evaluate current and proposed job descriptions, and help strategize ways to minimize potential impacts should the proposed rule be implemented. Immigration counsel may be able to suggest private wage survey alternatives to the prevailing wage requirements that might alleviate negative impacts resulting from the new rule.
• Those interested may submit public comments here. The comment period closes on or around May 26, 2026.