Proposed DOL Prevailing Wage Rule (2026): Wage Level Changes and Historical Context
On March 27, 2026, the Department of Labor (DOL) published a Notice of Proposed Rulemaking (NPRM) to significantly raise prevailing wage levels for the H-1B, H-1B1, E-3, and PERM programs (Docket ETA-2026-0001). The proposed rule would raise each of the four wage levels by 17 to 21 percentile points. Below is a data-focused analysis of what changes, DOL's own estimate of the wage impact, and how the proposal compares with a previous policy shift (the March 2017 specialty occupation guidance).
Current vs. Proposed Wage Levels
The DOL assigns one of four wage levels to each job based on experience and complexity. Each level corresponds to a percentile of wages within that occupation and geographic area, drawn from the Occupational Employment and Wage Statistics (OEWS) survey. The proposed rule would raise each level:
| Wage Level | Current Percentile | Proposed Percentile | Change |
|---|---|---|---|
| Level I (Entry) | 17th | 34th | +17 |
| Level II (Qualified) | 34th | 52nd | +18 |
| Level III (Experienced) | 50th | 70th | +20 |
| Level IV (Fully Competent) | 67th | 88th | +21 |
The shift is largest at Level IV (+21 percentile points), which would move from the 67th to the 88th percentile, near the top of the wage distribution for any given occupation.
Dollar Impact
DOL estimates the proposed levels would raise the average certified wage by approximately $14,000 per worker per year (91 FR 15454). The effect on a specific job depends on its occupation and area; DOL OFLC publishes the prevailing wage for each occupation and area.
Who Is Affected?
The proposed rule applies to all employers using the prevailing wage system:
- H-1B Labor Condition Applications (LCAs): employers must pay at least the prevailing wage for the occupation and area
- PERM Labor Certifications: the offered wage must meet or exceed the prevailing wage
- H-1B1 and E-3 programs: same wage floor requirements
The proposed rule itself reports that 63 percent of certified LCAs in FY 2024 were for positions classified at wage levels I and II (DOL, "Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States," 91 FR 15454, March 27, 2026, federalregister.gov). The proposed rule would require employers to pay closer to the market median, particularly at Levels I and II.
Aggregate Economic Impact
DOL's regulatory impact analysis estimates annualized transfers of up to $6.56 billion (7 percent discount rate, 2024 dollars) from H-1B, H-1B1 and E-3 employers to workers and other employers. DOL did not quantify the transfers for PERM certifications, which it expects to be de minimis given the comparatively low number of PERM participants (91 FR 15454).
The 60-day public comment period closed on May 26, 2026. If finalized, the rule would apply to prevailing wage requests pending on, or filed after, its effective date; determinations already issued, certified LCAs and approved PERM labor certifications would not be retroactively affected.
Historical Precedent: The 2017 Specialty Occupation Policy
The proposed wage rule is not the first significant policy change to affect H-1B employers. On March 31, 2017, USCIS issued Policy Memorandum PM-602-0142, which rescinded its December 22, 2000 guidance memo on H-1B computer-related positions. While this was a policy guidance (not a regulation), USCIS later rescinded it (see below).
Outcomes by Employer
USCIS publishes the first decision it made on each employer's petitions for initial and continuing H-1B employment, from fiscal year 2009 onward, in its H-1B Employer Data Hub (uscis.gov). The hub can be searched by employer name and fiscal year, so a reader can see how decisions for a specific petitioner changed from year to year.
Comparing the Two Policy Changes
While the 2017 specialty occupation guidance and the 2026 proposed wage rule address different aspects of the H-1B program, they share a common mechanism: raising the compliance bar for employers.
| Dimension | 2017 Specialty Occupation | 2026 Prevailing Wage (Proposed) |
|---|---|---|
| Mechanism | Policy memo (guidance) | NPRM (formal rulemaking) |
| What changed | Guidance on H-1B computer-related positions | Prevailing wage percentile floors |
| Primary lever | Adjudication scrutiny (RFEs/denials) | Wage floor requirements |
| Affected programs | H-1B (initial + extensions) | H-1B, H-1B1, E-3, PERM |
| Reversal path | Revoked by subsequent memo | New rulemaking to rescind, or a court vacatur |
A key difference: the 2017 change was a policy memo, and USCIS later rescinded it with another memo (Policy Memorandum 602-0142.1, issued February 3, 2021, per the USCIS alert "USCIS May Reopen H-1B Petitions Denied Under Three Rescinded Policy Memos," March 12, 2021, uscis.gov). If the 2026 proposal is finalized, it would carry the force of regulation, and DOL would need another rulemaking to rescind it, although a court can still vacate it: DOL's January 14, 2021 final rule on the same wage levels (Level I at the 35th percentile, Level IV at the 90th), issued after a public comment period, was vacated and remanded by the Northern District of California on June 23, 2021, at DOL's unopposed request (recounted in 91 FR 15454).
PERM Implications
For green card applicants, the prevailing wage change has direct implications for the PERM labor certification process. The offered wage in a PERM application must meet or exceed the prevailing wage. If prevailing wages rise significantly:
- Employers may need to increase offered salaries to meet the new floors, potentially affecting willingness to sponsor
- Prevailing wage determinations (PWDs) already issued would not be affected; under the proposal, the new levels would apply to PWD requests pending on the effective date and to new requests (91 FR 15454)
- The PERM Tracker shows DOL's current PERM queue and employer-level analysis of decided cases, from DOL disclosure data
Use the Salary Explorer to see how current LCA filings compare to existing prevailing wage levels for any occupation and employer. Data sourced from DOL OFLC disclosure files.
What Happens Next
The public comment period closed on May 26, 2026. Key milestones to watch:
- Comment period closed: May 26, 2026. Stakeholders (employers, worker advocates, trade associations) submitted feedback
- DOL review: DOL reviews comments and may modify the rule before finalizing
- Final rule: if finalized, DOL publishes a final rule, with an effective date stated in the final rule
- Potential litigation: industry groups may challenge the rule in court, as happened with the similar October 2020 IFR (which a court set aside in December 2020)
DOL first tried to raise the wage levels in an Interim Final Rule (IFR) published October 8, 2020 (85 FR 63872), which set even higher levels (Level I at about the 45th percentile). DOL issued it without prior notice and comment. A federal court set it aside on December 1, 2020, on the plaintiffs' notice-and-comment claim, and another court ruled on December 14, 2020, that DOL had lacked good cause to skip notice and comment (the litigation is recounted in 91 FR 15454). The 2026 proposal was published for notice and comment.
Tools for Monitoring
- Salary Explorer: search current LCA filings by employer, occupation, and location. See how filed wages compare to prevailing wage levels. Data sourced from DOL OFLC disclosure files.
- PERM Tracker: DOL's current PERM queue and employer-level analysis of decided cases
- Priority Date Estimator: estimate your green card wait time based on historical visa bulletin patterns (the three scenario dates need a $0.99 24-hour pass for up to 3 priority dates, the Day Pass or Pro)
Subscribe to the free email for each new visa bulletin's Final Action Dates and Dates for Filing, sent once per bulletin.
This article provides general information based on publicly available Federal Register notices, USCIS administrative data, and DOL regulatory filings. The analysis presents historical data and publicly stated regulatory proposals. Consult a qualified immigration attorney for guidance specific to your situation. Not legal advice.