Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States

The U.S. Department of Labor has issued a Notice of Proposed Rulemaking (NPRM) to revise the prevailing wage system that governs how much employers must pay foreign workers hired through specific visa pathways. The proposed changes specifically target the EB-2 and EB-3 employment-based immigrant visa programs (via the PERM permanent labor certification process) and the H-1B, H-1B1, and E-3 nonimmigrant visa categories. The core of the proposal is a revision to how wage levels are calculated under DOL's existing four-tiered prevailing wage structure, which is derived from the Occupational Employment and Wage Statistics (OEWS) survey conducted by the Bureau of Labor Statistics (BLS). Currently, critics argue that the lower wage tiers allow employers to pay foreign workers less than comparable U.S. workers, creating an incentive to substitute American employees with cheaper foreign labor. The proposed rule aims to recalibrate wage level thresholds so they more accurately reflect the actual wages paid to similarly employed U.S. workers in the same occupation and geographic area. By raising the wage floor for foreign workers, DOL seeks to eliminate the cost advantage that may incentivize employers to hire foreign nationals over domestic workers. This rulemaking is also framed as a program integrity measure, intended to ensure that the H-1B, PERM, and related programs serve their intended purpose of supplementing the U.S. workforce where genuine shortages exist, rather than enabling the displacement of American workers through the use of lower-paid foreign labor.

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