What's new

The NPRM applies to all four wage-tier categories used by employers when filing Labor Condition Applications (LCAs) for H-1B, H-1B1, and E-3 nonimmigrant petitions, and Labor Certifications (PERM) for EB-2 and EB-3 immigrant petitions. The Department proposes lifting Wage Level I from the 17th to 34th percentile, Wage Level II from the 34th to 52nd, Wage Level III from the 50th to 70th, and Wage Level IV from the 67th to 88th percentile of the OEWS occupation-and-area wage distribution. The proposed Level I floor matches the current Level II floor, effectively collapsing the entry-level wage distinction.

DOL's own impact analysis estimates that more than 75 per cent of certified positions between fiscal years 2020 and 2024 would fall below the new wage floors. The NPRM cites a finding that "the average wage offered to H-1B workers was approximately $10,191 lower than the OEWS average wage for similarly classified occupations," a gap the proposed rule positions as the regulatory justification for the realignment. Employers retain access to alternative wage sources outside OEWS — including independent surveys that meet DOL methodology criteria and certain collective-bargaining agreements — none of which would be directly bound by the new percentile bands.

The Department of Labor published the NPRM through the Employment and Training Administration on March 26, 2026 and made it effective for public comment with the Federal Register publication the following day. Comment-period closure on May 26 ends the formal input window; DOL's final-rule drafting phase begins thereafter, with an interim or final rule expected within 60 to 180 days depending on the volume and complexity of submissions received.

Why it matters

The NPRM is the most consequential proposed change to the H-1B and PERM wage-methodology framework since the original four-tier OEWS structure was promulgated in 2009. Indian EB-2 and EB-3 beneficiaries carry the highest concentrated exposure — Indian nationals account for the largest single-nationality block in the employment-based queue, and a substantial share of pending PERM filings rely on Level I and Level II wage determinations to qualify within startup-stage and entry-skill occupation profiles that would no longer clear the proposed floors. The same impact extends across Chinese, Filipino, and Mexican nationals in the EB-2 and EB-3 pipelines.

The proposal also reaches across academia, healthcare, and the technology sector. Universities filing H-1B petitions for postdoctoral researchers, hospitals sponsoring nurses and physicians, and technology firms hiring early-career engineers all rely heavily on Level I and Level II classifications. A shift to the 34th percentile floor for Level I would raise entry-level wage requirements by approximately 25 to 35 per cent depending on occupation and metropolitan statistical area, with corresponding hikes through the higher tiers.

Brian D. Bumgardner, Shareholder in Ogletree Deakins' Immigration Practice in Raleigh, and Philip K. Sholts, Of Counsel in the firm's Washington, D.C. office, characterised the NPRM as a restructure that would compress the entry-level wage distinction and lift the four-tier OEWS framework into a substantially narrower upper band. Chelsea Hsieh, Partner in KPMG Law LLP's US Immigration practice, observed in a KPMG Global Mobility Services Flash Alert that the rule would increase all four OEWS wage levels and reshape employer sponsorship strategies, hiring timelines, and long-term workforce planning. Duane Morris LLP's immigration team noted that the 2020 predecessor rule "set comparable wage levels (Level I at the 35th percentile, Level IV at the 90th percentile)" before being challenged in court on procedural grounds and vacated.

The October 2020 interim final rule, published in the closing weeks of the first Trump administration and finalised in January 2021, set Level I at the 35th percentile and Level IV at the 90th — a near-mirror of the current proposal. Multiple federal courts vacated it on Administrative Procedure Act grounds, citing inadequate notice-and-comment procedure under the good-cause exception the agency had invoked. The March 2026 NPRM addresses that defect directly by running the full 60-day notice-and-comment window the prior rule bypassed, narrowing the APA challenge surface available to potential plaintiffs.

Where it stands

Comment-period closure on May 26, 2026 ends DOL's obligation to consider new submissions in the formal record; agency career staff and Solicitor of Labor attorneys begin synthesising the comment file and drafting the final-rule preamble immediately thereafter. Typical major-rule timelines run 60 to 180 days from comment close to publication of an interim final rule or final rule, with OMB Office of Information and Regulatory Affairs (OIRA) review consuming the latter half of that window.

The final rule, when published, will not retroactively apply to LCAs or PERM filings already certified under the existing 17th-to-67th percentile structure; DOL has proposed prospective application only, with implementation-date language consistent with prior wage-methodology changes that historically allowed a 30-to-60-day onramp. Pending LCAs and PERM applications submitted before the rule's effective date would clear at the current floors.

Federal-court challenge remains the most likely post-publication contingency. Industry coalitions including Compete America, the U.S. Chamber of Commerce, and the Information Technology Industry Council filed substantive comments during the open window arguing that the OEWS data itself does not support the percentile-band shift the rule proposes. The Department has not signalled whether it will modify the proposed bands in response to industry input or proceed with the published structure intact. Litigation under the Administrative Procedure Act, the Immigration and Nationality Act sections governing wage determination (INA §212(n) for H-1B and §212(a)(5)(A) for PERM), and arbitrary-and-capricious review under the Supreme Court's Loper Bright framework remain available challenge vectors once the final rule is on the books.