DOL Wants to Double the H-1B Wage Floor. The Comment Deadline Is May 26.

The rule that arrived in March and flew under the radar

On March 27, 2026, the Department of Labor published a Notice of Proposed Rulemaking in the Federal Register. It is formally called 'Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States.' The plain-English version: DOL wants to substantially raise the minimum wages that must be paid to H-1B workers and to applicants going through PERM labor certification for employment-based green cards.

The rule got less attention than the H-1B lottery results and the April 30 Chart B deadline. But by the numbers, it is a bigger deal for the long-term cost structure of employment-based immigration than either of those stories. Every Labor Condition Application filed for H-1B purposes and every prevailing wage determination for PERM sponsorship runs through the framework this rule would rewrite.

The public comment period closes May 26, 2026. That is nineteen days from today. If this rule matters to you — as an employer, an H-1B worker, or someone in the PERM queue for EB-2 or EB-3 — this is the window to put something on the record.

Four wage levels, all moving upward

The prevailing wage system divides wages into four levels based on where a given salary falls within the DOL's Occupational Employment and Wage Statistics survey for a specific occupation and geographic area. The levels represent the range of experience and skill within a given profession.

Right now: Level I sits at the 17th percentile. Level II at the 34th. Level III at the 50th. Level IV at the 67th. These are the percentiles that determine what an H-1B employer must certify it is paying, and what a PERM employer must advertise during the labor market test.

Under the proposed rule, every level shifts upward. Level I moves to the 34th percentile — doubling its current position. Level II moves to roughly the 52nd. Level III to roughly the 70th. Level IV to the 88th percentile, up 21 points from the current 67th. The INA requires Levels II and III to be calculated arithmetically from the gap between Levels I and IV, so the intermediate numbers follow from the anchor points DOL proposes for I and IV.

This is not a rounding-error adjustment. The lowest wage tier doubles its percentile anchor. The highest moves into the top 12 percent of the wage distribution. The jump from the 67th to the 88th percentile means the current Level IV floor would not even qualify as Level III under the proposed system.

The dollar impact DOL is projecting

DOL analyzed prevailing wage data from fiscal years 2020 through 2024 to project what the rule would do in practice. The agency estimates the average certified wage across all affected cases would increase by approximately $14,000 per year. Across the full affected population — H-1B, H-1B1, E-3, and PERM applicants — DOL projects employers would collectively pay a combined $6.5 billion more per year.

The $14,000 is a mean. Individual impacts vary substantially by occupation and geography. For a Level I position in a mid-sized metro, the required minimum wage could increase by $20,000 or more. For a Level IV senior professional in a high-cost city who is already earning well above the current floor, the practical impact may be smaller — many high-level workers already earn above where the new floor would land.

The hardest hit is entry-level. Level I as currently structured, at the 17th percentile, is the minimum floor for workers entering a specialty occupation for the first time. Shifting that floor to the 34th percentile means entry-level sponsorships become materially more expensive. For employers that rely on sponsoring recent graduates or early-career candidates in H-1B or PERM cases, the cost math changes substantially.

Why PERM applicants need to pay attention

Most coverage of this rule has focused on H-1B, because that connection is more visible. But PERM — the labor certification process required for most EB-2 and EB-3 employment-based green card sponsorships — is directly in scope and takes the same hit.

When an employer begins a PERM case, it requests a prevailing wage determination from DOL's Office of Foreign Labor Certification. That determination sets the floor: the minimum the employer must advertise during recruitment and ultimately pay the sponsored worker. Under the proposed rule, prevailing wage determinations requested after the rule's effective date would use the higher percentile floors.

For Indian and Chinese workers already managing decade-long EB-2 and EB-3 waits, a complication at the PERM stage does not delay the green card by one month — it affects the priority date, and that matters enormously in a backlog measured in years. Employers with salary bands constrained by broader compensation policies may find that the required prevailing wage exceeds what they can or will pay. Sponsorship becomes a harder internal sell at that point.

The lottery interaction nobody is connecting to this

The H-1B wage-weighted lottery, in effect for FY2027 cap selections, assigns lottery entries based on prevailing wage level: Level I gets one entry, Level II gets two, Level III gets three, Level IV gets four. Higher wage equals more entries equals better selection odds.

If the proposed DOL rule becomes final, the dollar thresholds required to reach each wage level would also shift upward. A position that currently qualifies as Level II at the 34th percentile might fall to Level I under the new structure, because Level II would move to the 52nd percentile. The same salary, the same job, but now contributing only one lottery entry instead of two. Worse odds from a regulatory change alone.

The effect also runs the other direction. Employers who increase salaries to maintain Level II, III, or IV classification under the new floors would preserve or improve their lottery standing — but only if they have budget to do it. For smaller employers, research institutions, or positions in lower-wage markets, that flexibility may not exist. The rule compounds the lottery disadvantage already facing Level I positions, layering a higher sponsorship cost on top of the existing selection-odds gap.

What 'non-retroactive' actually protects

The proposed rule includes non-retroactive provisions. Existing approved Labor Condition Applications, existing approved prevailing wage determinations, and completed PERM certifications would not be affected. If your employer already has an approved LCA for your current H-1B petition, the rule would not require them to revise it upward. If your PERM was already certified, that certification stands.

What is less protected: prevailing wage determination requests pending at the OFLC National Processing Center as of the rule's effective date would be evaluated under the new rules. All new LCAs and PERM prevailing wage determinations filed after the effective date would use the new, higher floors.

The effective date is separate from the comment deadline. After May 26, DOL reviews comments, publishes a final rule, and sets an effective date. Based on recent rulemaking cycles, finalization could take six months to a year after the comment period closes. The rule is not in effect today, and it is not guaranteed to be finalized in its proposed form.

The regulatory history behind this

This is not the first time DOL has proposed raising prevailing wage percentiles for H-1B and PERM. The Obama administration proposed similar increases in 2011; that rulemaking was eventually withdrawn. The first Trump administration attempted its own wage-floor increases in 2020, under a rule called 'Strengthening Wage Protections for Temporary and Permanent Employment,' which was blocked by multiple federal courts on procedural and substantive grounds.

The current proposal went through a longer internal review before publication, which DOL likely believes strengthens its legal foundation. Whether it survives court challenge is a separate question. Courts have previously found problems with prevailing wage increases in this context, including APA procedural objections and substantive challenges to DOL's authority to set specific percentile thresholds.

What makes the current moment different is that the wage-weighted H-1B lottery is already in effect for FY2027. DOL is framing this rule as a complement to the lottery — extending wage protections to the base prevailing wage floors themselves, not just the selection mechanism. That framing is coherent within the current administration's stated priorities, even if the legal path to finalization involves obstacles the 2020 version also faced.

Nineteen days left to comment

The comment deadline is May 26, 2026. Comments can be submitted at regulations.gov by searching for Federal Register document number 2026-06017 or through the ETA docket. Employers, immigration attorneys, professional associations, universities, and individual workers all have standing to comment.

DOL is required to read and formally respond to substantive comments before finalizing the rule. Comments backed by data — specific dollar impacts on specific employer types, evidence of displacement in particular industries or worker populations, analysis of the wage-level methodology — are more likely to shape the final rule than general objections. If you describe a real situation with real numbers, it goes into the docket and has to be addressed.

If you have a pending H-1B case, an active PERM, or a prevailing wage determination in process at OFLC, track this rule even if you cannot comment. Monitor the Federal Register for the final rule publication. The effective date, once set, determines whether your case falls under the old rules or the new ones. This article is informational only and does not constitute legal advice. Consult a licensed immigration attorney and, where appropriate, a compensation specialist to understand how this rulemaking could affect your specific situation.