DOL to Increase Prevailing Wage Levels

On March 27, 2026, the U.S. Department of Labor (DOL) proposed a new rule to increase prevailing wage levels. If finalized, the rule would increase prevailing wage requirements for employers sponsoring foreign nationals under the H‑1B, H‑1B1, E‑3, and PERM (EB‑2 and EB‑3) programs.

Current Prevailing Wage Structure

For more than two decades, DOL has relied on the Occupational Employment and Wage Statistics (OEWS) survey to assign four prevailing wage levels based on percentiles of the wage distribution:

• Level I (Entry Level): 17th percentile
• Level II (Qualified): 34th percentile
• Level III (Experienced): 50th percentile
• Level IV (Fully Competent): 67th percentile

These wage levels are used uniformly for temporary programs, like the H-1B and permanent programs, like EB-2 and EB-3 category Green Cards.

 

Proposed Wage Level Changes

Under the new rule, DOL would substantially raise each wage tier:

 

Wage Level	Current		Proposed
Level I	17th	→	34th
Level II	34th	→	52nd
Level III	50th	→	70th
Level IV	67th	→	88th

 

Notably, entry-level wages would double, moving to the current Level II floor.

 

DOL estimates these changes would increase average required wages by approximately $14,000 annually, depending on occupation and location.

 

When Would the New Wages Take Effect?

DOL will accept comments on the rule from the public until May 26, 2026.

 

If finalized, the new wage methodology would take effect no earlier than 60 days after the final rule is published. Until then, current wage levels remain in effect.

IMPLEMENTATION OF DOL RULE INCREASING PREVAILING WAGES DELAYED

The US Department of Labor (DOL) has delayed the new rule which would change the method for calculating prevailing wages for 18 months. 

In October 2020, the DOL announced an Interim Rule which changed the computation of wage levels and dramatically increased prevailing wages.  The October 2020 Interim Rule was later struck down by the courts, but was later re-issued as a Final Rule in January 2021. 

On January 14, 2021 the DOL published its Final Rule regarding increases in prevailing wages for H-1B, H-1B1, E-3, and Green Card cases. You can find our blog post summarizing the Final Rule here.  

The Final Rule was initially set to take effect May 14, 2021 and wages issued after July 1, 2021 would be impacted. However, the DOL has postponed the effective date of the Final Rule by 18 months until November 14, 2022. The DOL delayed the start of the transition period to the new prevailing wage levels from July 1, 2021 to January 1, 2023. 

The DOL is implementing this delay to allow for more time to fully analyze the legal and policy issues raised by the rule, as well as to validate the prevailing wage data. This official delay is expected to be effective on March 22, 2021.

REMINDER: H-1B CAP: LOTTERY AND REGISTRATION UPDATES

MU Law will be hosting a free webinar for our clients and friends on Tuesday, February 16, 2021 at 2PM Eastern (1PM Central). Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Join us for this FREE webinar to learn more about:

-      The H-1B CAP timeline for registration submissions

-      The H-1B Wage-Based Lottery Selection Rule now *canceled*

-      Recap of DOL Wage Rule and promo Alternative Wage Surveys

-      The H-1B Rule Requiring End-Clients to file LCAs or H-1Bs now *canceled*

 

PLEASE JOIN US! 

USCIS Delays Wage-Based H-1B Lottery until 2022

In January 2021, the USCIS issued a final rule that would replace the random H-1B cap lottery with a wage-based H-1B selection process. This January 2021 rule was set to go into effect on March 9, 2021 and would apply to the upcoming H-1B cap season (filed in April 2021 for Fiscal Year 2022). However, the USCIS has delayed implementing this rule until December 31, 2021. This means that for the H-1B cap lottery in April 2021, even if there are multiple lottery drawings, none of the drawings will be done under the wage-based selection process.  All lottery drawings in 2021 will be random.  

The new wage-based selection process would select the H-1Bs filed at the highest OES prevailing wage level, starting with Level IV, for the job classification and location of employment.  If there are more than 85,000 Level IV H-1B petitions filed, then the USCIS would hold a lottery just for the Level IV wage petitions.  If there are fewer than 85,000 level IV wage petitions, then the USCIS would run a lottery of the Level III wage petitions for the remaining H-1B spots available. The wage-based selection process then continues for Level II and I, until 85,000 petitions have been selected. 

The USCIS announced February 4, 2021 that the USCIS will delay implementing the wage-based selection process because the USCIS does not have adequate time to develop and test the new wage-based selection process for the 2021 H-1B lottery.  At present, the USCIS plans to have the rule implemented for the H-1B cap season in April 2022 (Fiscal Year 2023).

A LOOK BACK, AND A LOOK AHEAD

Join is for a review of some of the immigration changes that took place in 2020 and a look forward to the changes coming in 2021, specifically for the H-1B cap. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

MU Law will be hosting a free webinar for our clients and friends on Tuesday, January 26, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

• H-1B Cap Basics, Registration Process, and Projections
• NEW RULE: H-1B lottery system, selection by wage
• NEW RULE: DOL Rule Regarding Calculation of Prevailing Wage
• H-1B Specialty Occupation
• H-1B Dependency
• H-1B issues for Staffing Companies and Third-Party Placement
• Third- Party Placement v. In-House work?
• Employer-Employee Relationships
• Cap-Gap for F-1s
• CPT / OPT Maintenance
• Top 10 things H-1B employers can do to stay compliant

PLEASE JOIN US! 

DOL DRAMATICALLY RAISES PREVAILING WAGES

DOL DRAMATICALLY RAISES PREVAILING WAGES

On January 14, 2021 the US Department of Labor (DOL) published its Final Rule regarding the calculation of prevailing wages.  Readers of our blog will note that the DOL previously issued an Interim Rule about calculation of prevailing wages which was struck down by Federal Judges late last year.  The Final Rule published on January 14, 2021 is the updated version of the Interim Rule.

 

Summary of the Final Rule

The Final Rule will dramatically change the calculation of prevailing wage levels resulting in significantly higher prevailing wages.  While the new percentiles are lower than the October 2020 Interim Rule’s percentiles, the new percentiles are still considerably higher than the current percentiles. 

 

Wage Level	Current Percentile	October 2020 Interim Rule Percentile	January 2021 Final Rule Percentile
1	17	45	35
2	34	62	53
3	50	78	72
4	67	95	90

 

The Final Rule applies to prevailing wages applicable to applications for H-1Bs, H-1B1s, E-3s, and Green Cards.

 

Transition Periods

The Final Rule attempts to provide employers and foreign nationals an opportunity to adapt to the change in calculations.  For those who did not have an I-140 approval in hand as of October 8, 2020, the transition will occur over an eighteen-month period:

• Stage One, Present to June 30, 2021: Current Percentiles remain in effect
• Stage Two, July 1, 2021 to June 30, 2022: 90% of the Final Rule percentile
• Stage Three, July 1, 2022 and Beyond: 100% of the Final Rule percentile

For those who did have an I-140 approval in hand as of October 8, 2020, and so are applying for a post-six year H-1B extension, the transition will occur over an three and a half year period:

• Stage One, Present to June 30, 2021: Current Percentiles remain in effect
• Stage Two, July 1, 2021 to June 30, 2022:85% of the Final Rule percentile
• Stage Three, July 1, 2022 and Beyond: 90% of the Final Rule percentile
• Stage Four, July 1, 2023 and Beyond: 95% of the Final Rule percentile
• Stage Five, July 1, 2024 and Beyond: 100% of the Final Rule percentile

The American Immigration Lawyers’ Association (AILA) reported that President-Elect Biden’s transition team will issue an immediate 60-day delay to the implementation of this and other last-minute regulations promulgated by the Trump presidency, but how the Biden Administration will move forward remains unknown.

 

Alternative Wage Surveys

Alternative Wage Surveys may be accepted by the DOL if the survey meets specific requirements.  Employers concerned about the Final Rule and its implications for their employees may want to consider using an Alternative Wage Survey in place of the DOL’s wage survey.  For more information about which wage surveys may be accepted by the DOL, please contact your MU attorney. 

A LOOK BACK, AND A LOOK AHEAD

Join is for a review of some of the immigration changes that took place in 2020 and a look forward to the changes coming in 2021, specifically for the H-1B cap. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

MU Law will be hosting a free webinar for our clients and friends on Tuesday, January 26, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

• H-1B Cap Basics, Registration Process, and Projections
• NEW RULE: H-1B lottery system, selection by wage
• NEW RULE: DOL Rule Regarding Calculation of Prevailing Wage
• H-1B Specialty Occupation
• H-1B Dependency
• H-1B issues for Staffing Companies and Third-Party Placement
• Third- Party Placement v. In-House work?
• Employer-Employee Relationships
• Cap-Gap for F-1s
• CPT / OPT Maintenance
• Top 10 things H-1B employers can do to stay compliant

PLEASE JOIN US!

FEDERAL JUDGE BLOCKS TRUMP ADMINISTRATION’S ATTEMPT TO DISMANTLE LEGAL IMMIGRATION

In a striking rebuke of the Trump Administration’s attempts to dismantle legal immigration, the U.S. District Court for the Northern District of California has set aside both (i) the DHS interim final rule (IFR), Strengthening the H-1B Nonimmigrant Visa Classification Program, and (ii) the DOL IFR, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.  

This twin-killing of Trump policy does several things:

• It reinstates the prior DOL OES wage survey back to the formula that has been in place for more than a decade.
• It resets H-1B law, allowing third-party placement, three year-approval notices and a fuller range of approvable H-1Bs. 

The Court’s decision, which was issued last night, said that, the Administration, "failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA's notice and comment requirements.”  MU Law will provide updates as more information is available. 

DHS PROPOSED RULE TO SELECT ONLY THE HIGHEST WAGES IN H-1B CAP

On November 2, 2020, DHS published in the Federal Register its proposed new rule for the 2021 CAP that would give priority to H-1B CAP candidates whose employer promises to pay the highest of the Occupational Employment Statistics (OES) wage levels. 

The OES categorizes wages from Levels I through IV for a particular position in a Metropolitan Statistical Area (MSA). In the H-1B context, the employer then chooses the appropriate wage level based on the experience and complexity of the position and can file a Labor Condition Application (LCA) using the OES wage assigned. 

According to the DHS’s proposed rule, only those H-1B CAP registrations offering the highest OES wage levels would be selected for filing in the 2021 CAP. This means that DHS would first accept Level IV wages, then Level III, etc. 

Keeping with the 2020 CAP changes, the USCIS’s current intent is to continue its electronic pre-registration system, requiring first a registration period of CAP petitions, and a later period of filing. DHS’s proposed rule intends to add a wage level question to its pre-registration form so that only the highest wage levels are selected for filing. 

The Master’s CAP, an allotment of 20,000 H-1Bs designated only for candidates possessing a master’s degree from an accredited U.S. university, is also in place for the 2021 CAP period. 

The proposed rule is currently accepting comments from the public until December 2, 2020, to which DHS will then respond and may alter some elements of the rule. 

RECAP OF CHANGES FROM THE USCIS, DOL, AND DOS

MU Law will be hosting a free webinar for our clients and friends on Monday, November 16, 2020 at 2PM Eastern (1PM Central). Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Join us for this FREE webinar to learn more about:

• The new USCIS rule on qualifying for H-1B

• The new DOL rule on wage calculations and alternative wage surveys

• Pending law suits on the new H-1B and wage rules

• The new USCIS rule on the H-1B lottery system

• The Public Charge rule

• The Visa Bulletin

• The new USCIS rule on F-1 duration of status

• Post-Election debrief and a look forward 

PLEASE JOIN US! 

DOL WAGES: LAWSUITS AND ALTERNATIVE SURVEYS

At our recent webinar, MU attorneys discussed the new DOL wage rule and how it could greatly raise prevailing wages for H-1B petitions and EB-2 and EB-3 green cards.  More on this topic here.   We want to give our clients and friends two updates: 

1.   Lawsuit.  MU along with some clients and the US Chamber of Commerce have been working on a lawsuit against both the DOL and the USCIS.  US Chamber of Commerce press release.  The lawsuit seeks to overturn both the new DOL wage computation used in their OES wage survey, and the three harsh changes to the H-1B definition.  The lawsuit was filed last week and there is a hearing on the case set for November 23.  If successful, the DOL and USCIS regulations could be nullified. 

2.   Alternative Wage Surveys.  The new DOL rule only raises the OES survey, which is the default survey used in H-1B cases, and in PWDs, which are used in EB-2 and EB-3 green card petitions.  The law still allows “alternative surveys.”  An alternative survey is any published or private survey that meets common statistical metrics, is recent, is geographically relevant, and covers the position in question.  

MU has identified several surveying companies that can be used for problematic wages.  As MU works your cases, we will let you know if we think that a survey may be a strategy worth pursuing.

IMPLICATIONS OF THE NEW DEPARTMENT OF LABOR WAGE LEVELS

Effective October 8, 2020, the Department of Labor (DOL) issued a new rule dramatically increasing prevailing wages for H-1B, EB-2, and EB-3 workers.  The new rule changes the computation of the four levels of wages when the DOL is using the Occupational Employment Statistics (OES).  For more detail about these changes, you can read our previous blog post on the rule.

A prevailing wage determination can only be issued by the DOL. The prevailing wage is based on the job duties, job requirements, and job location as provided by the employer on a prevailing wage request.  The prevailing wage for an H-1B, EB-2, or EB-3 worker, is the wage the foreign national is required to be paid by his or her employer upon approval of the H-1B or green card.

Frequently, employers and foreign nationals review the Foreign Labor Certification (FLC) Data Center website which publishes the OES wages and refer to the OES wages as the “prevailing wages.” The FLC Data Center wages are not prevailing wages. A prevailing wage determination (PWD) can only be issued by the DOL.

The OES is only one wage library the DOL can consult when issuing a PWD.  The DOL can also review private wage surveys, if the survey is provided by the employer at the time the wage request is made.  In order for a private wage survey to be accepted by the DOL, it must meet certain, specific requirements.  For more information about those requirements and which surveys might apply to your cases, please contact MU.

The new DOL wage rule only applies to wage determinations issued by the DOL or LCAs certified by the DOL on or after October 8, 2020.  Approved H-1Bs or I-140s are not required to be updated with the new wage calculations.  In addition, wage determinations which have been issued by the DOL and are valid through 2021 are not required to be updated.

Finally, there are several law suits which have already been filed challenging the new rule.  Please continue to read our blog for regular updates on these pending law suits and the wage rule. 

DOL AND USCIS DRAMATICALLY ALTER EMPLOYMENT BASED IMMIGRATION

In two sweeping and lengthy regulations the USCIS and DOL have attempted to jam through last minute rules that dramatically alter employment-based immigration.  The DOL rule takes effect on Thursday October 8. The USCIS rule will take effect in 60 days. Both rules are expected to be challenged in court.

DOL Rule

The DOL rule dramatically increases prevailing wages for H-1B and EB-2 and EB-3 workers.  The rule changes the computation of Level I, II, III, and IV.  Current Prevailing wages use this formula:

Level            US wage percentile
I                  17
II                 34
III                50
IV                67

The new rule changes the formula:

Level            US wage percentile

I                  45
II                 62
III                78
IV                95

USCIS Rule

The new USCIS regulation will be published on October 8 and take effect 60 days later. It applies only to petitions filed on or after the effective date.
The rule implements several changes:

• It revises the H-1B definition of “specialty occupation” in a very limiting way.  This new regulation seeks to rewrite the approvability of H-1B visas. The USCIS has consistently lost in federal court because it has repeatedly misapplied its own definition of specialty occupation.  This regulatory change seeks to reduce the likelihood of the USCIS losing on this issue in federal court.

• The new rule limits third-party placement H-1B validity to one-year increments.  There does not appear to be any statutory justification for this change other than the USCIS’ own belief that third-party placements cause more fraud.  As with the rewrite of the specialty occupation rule, this regulatory change seeks to reduce the likelihood of the USCIS losing on this issue in federal court.

• It also reimposes contract and itinerary requirements in H-1B petitions, which had been ruled illegal by several federal courts.  Again, the USCIS seeks to reduce the likelihood of the USCIS losing on this issue in federal court.

Musillo Unkenholt will shortly have more detail about these two massive new changes.