Prevailing Wage DOL comment 2026 K Walker

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KATHLEEN CAMPBELL WALKER
BOARD CERTIFIED BY THE
TEXAS BOARD OF LEGAL SPECIALIZATION IN
IMMIGRATION AND NATIONALITY LAW
[email protected]
(915) 541-9360

May 25, 2026
[email protected]
Mr. Brian Pasternak
Administrator
Office of Foreign Labor Certification
Employment and Training Administration
Department of Labor
200 Constitution Avenue NW
Room N– 5311
Washington, DC 20210
Submitted via www.regulations.gov
Re:

DOL Docket No. ETA–2026–0001 Regulatory Information Number (RIN 1205–AC30)
OMB Control Number – 1205-0508
Improving Wage Protections for the Temporary and Permanent Employment of Certain
Foreign Nationals in the United States

Dear Mr. Pasternak:
I am submitting this comment in response to Department of Labor (DOL) Employment and
Training Administration’s (ETA) March 24, 2026, solicitation of comments concerning the
Proposed Rule entitled, “Application for Prevailing Wage Determination contained in 91 Fed.
Reg. 14042. This Proposed Rule would change the DOL Office of Foreign Labor Certification’s
(OFLC) prevailing wage methodology for the H-1B, H-1B1 and E-3 nonimmigrant processes and
the Program Electronic Review Management (PERM) process.
As background, I serve as Co-Chair of the Immigration Practice Group for the firm and have
practiced business immigration law for over forty years. I am board certified in immigration and
nationality law by the Texas Board of Legal Specialization and a former national president and
general counsel to American Immigration Lawyers Association (AILA). Please refer to my bio at
the following link: https://www.dickinson-wright.com/our-people/kathleen-c-walker?tab=0 . Our
immigration practice group represents a broad variety of industry sectors including healthcare,
energy, manufacturing, education, maritime, technology, transportation, engineering, hospitality,
agriculture, automotive, mining, artificial intelligence, research, and food production, among
others.

DICKINSON WRIGHT PLLC

Background
Employers must pay H-1B, H-1B1, and E-3 nonimmigrants as well as PERM based immigrant
employees the “required wage,” which is defined as the greater of “the actual wage level paid
by the employer to all other individuals with similar experience and qualifications for the specific
employment in question; or ... the prevailing wage level for the occupational classification in the
area of employment.” 1 The Proposed Rule’s revisions to the existing Occupational Employment
and Wage Statistics (OEWS) four-tier wage level system would increase the prevailing wage
levels significantly:
Levels

Level I - entry
Level !! – qualified
Level III - experienced
Level IV – fully competent

Existing
Wage
Level
Percentiles
17th
34th
50th
67th

Proposed Rule – Wage Level Percentiles
Effective Increase
34th - 100% increase
52nd – 52.9% increase
70th - 40% increase
88th- 31.3% increase

Employers have relied on the exiting wage methodology since 2005. Raising these base wage
levels to the 34th, 52nd, 70th, and 88th percentiles would materially increase labor costs for
employers after reliance on the existing wage methodology over a period of more than 20 years.
The Proposed Rule applies across-the-board adjustments that lack any occupational nexus.
Due to the lack of any explanation, the Proposed Rule exemplifies random, poorly justified
resolutions that courts have condemned as arbitrary and capricious in the past. 2 In point of fact,
the Proposed Rule does not explain how the proposed increased wage levels reflect differences
in education, experience, and supervision for each occupation.
The Proposed Rule also fails to provide any systematic data analysis to prove its assertion that
foreign workers are routinely paid less than comparable U.S. workers. In addition, there is no
credible evidence or information provided to support the Proposed Rule’s assertion that the
current wage assessments have resulted in uniform wage suppression or displacement of
United States workers in most occupations and sections subject to the wage rule. The DOL fails
to recognize that 20 CFR 655, Subpart A already mandates employers to pay the higher of:
1. the prevailing wage for the occupational classification in the area of intended
employment, or
2. the actual wage paid by the employer to other individuals with similar experience and
qualifications for the specific employment in question.
This regulation prevents the underpayment of foreign workers and ensures that employers may
not lawfully use the H-1B nonimmigrant category, for example, to employ foreign workers as a
cheaper substitute for United States workers. The Proposed Rule does not explain how
pervasive underpayment of wages occurs, if these existing protections are properly applied and
1

8 USC §1182(n)(1)(A)(i)(I) -(II); see also 20 CFR §655.731(a).
Motor Veh. Mfrs. Ass'n of the U.S. v. State Farm Mutual Auto Ins. Co. (State Farm), 463 U.S. 29, 43
(1983) “[T]he agency must examine the relevant data and articulate a satisfactory explanation for its
action including a ‘rational connection between the facts found and the choice made.’” (quoting Burlington
Truck Lines, Inc. v. U.S., 371 U.S. 156, 168 (1962).

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DICKINSON WRIGHT PLLC

enforced by the DOL. A more efficient use of resources would be in funding additional oversight
and submission of data reports by employers to document wage compliance. For that matter,
involving the states as an optional avenue for wage establishment and compliance with terms of
employment in the nonimmigrant and immigrant categories implicated could improve the
accuracy of wages and address local labor needs with more current data.
In the Proposed Rule, the DOL references its 2009 Guidance regarding prevailing wage levels.
For 17 years, prevailing wages have been calculated based on the step-by-step process
outlined in this Guidance. This 2009 Guidance stated that wage “determinations using a
government survey shall be made available for each occupation at 4 levels of wages
commensurate with experience, education, and the level of supervision.” The current prevailing
wage determination process, however, predates major changes in labor markets and
occupational structures and categories. Thus, even if the DOL does not finalize the Proposed
Rule, it should modernize and improve the method by which prevailing wages are calculated if
accuracy is a goal. In addition, any changes should involve a graduated phased in approach to
address potential legitimate labor shortages and the impact of detrimental reliance on existing
processes by employers.
Please refer to the additional detailed analysis and examples provided in the comment on this
Proposed Rule by AILA and the American Immigration Council dated May 21, 2026. Thank you
in advance for your consideration.
Sincerely,
Dickinson Wright PLLC

By: ________________________________
Kathleen Campbell Walker, Member

4933-5383-9219 v2 [99998-3204]

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