On March 26, 2026, the U.S. Department of Labor (DOL) issued a proposed rule revising wage methodology for certain visa programs. DOL asserts that the proposed rule would modernize the existing methodology for determining prevailing wage levels in the permanent labor certification (PERM) for EB-2 and EB-3 immigrant visas, as well as in the nonimmigrant H-1B, H-1B1, and E-3 visa programs, in an effort to protect the wages and job opportunities of American workers by stripping away the ability of employers to pay substandard wages to foreign workers. 

Under the current system, any employer that wishes to hire a foreign worker in H-1B, H-1B1, E-3 nonimmigrant visa status or sponsor a foreign worker for an employment-based green card through PERM labor certification, must pay the foreign worker at least the prevailing minimum wage for the specific occupation, level, and metropolitan statical area (MSA) in which the foreign worker will physically work. Employers are required to obtain a certified labor condition application (LCA) from the DOL as part of the H-1B, H-1B1, and E-3 visa process. This LCA includes an attestation that the Employer will pay the foreign worker the higher of either the actual wage level paid to all other similarly situated employee(s), or the prevailing wage level for the occupational classification in the area of intended employment. 

Similarly, an Employer sponsoring a foreign worker in the second- or third- preference employment-based green card processes (EB-2 and EB-3) through a PERM labor certification application must obtain a prevailing wage determination (PWD) for the job opportunity from the DOL’s Office of Foreign Labor Certification’s (OFLC) National Prevailing Wage Center.

The Occupational Employment and Wage Statistics (OEWS) program, administered by DOL’s Bureau of Labor Statistics, collects wage data nationwide and produces prevailing wage estimates annually for a variety of occupations and geographic areas. To determine the prevailing wage, the DOL uses a four-tiered prevailing wage structure based on the OEWS. DOL then produces prevailing wages by dividing the data into four levels at different percentiles, Levels I – IV. 

This four-tiered wage structure is based on calculations that approximate the percentiles of the entire OEWS wage distribution, and is intended to ensure that wages paid to foreign workers meets the given industry standards and does not depress wages of comparable U.S. workers.

The proposed rule increases the salary requirements by increasing the percentiles for each level, as follows:

These proposed changes would result in significant wage increases across all four levels and could have a negative impact on H-1B, H-1B1, and E-3 visa sponsorships and on EB-2 and EB-3 PERM labor certification cases. 

Although, the proposed rule continues to allow for the use of private wage surveys and alternative wage survey data in limited circumstances to preserve employer flexibility, mitigate potential adverse impacts on businesses operating in specialized labor markets, and balance reliance interests with the statutory mandate to protect workers, DOL will monitor the use of private surveys to prevent abuse and ensure compliance, and will continue to reserve the right to reject any private survey that does not meet methodological standards or otherwise fails to satisfy regulatory requirements. 

Importantly, this proposed rule would not be retroactively applied and would only apply to prevailing wage determination applications pending as of the effective date of the rule and to new LCAs and PWD requests filed on or after that date. 

The proposed rule invites written comments for a period of 60-days from the date of publication in the Federal Register, March 27, 2026. The proposed rule is titled “Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States.”