Comment of Kelly A. Simons – DOL Docket No. ETA-2026-0001

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May 25, 2026
VIA REGULATIONS.GOV

Mr. Brian Pasternak, Administrator
Office of Foreign Labor Certification
Employment and Training Administration
U.S. Department of Labor
200 Constitution Avenue NW, Room N-5311, Washington, DC 20210
Re: Comment of Kelly A. Simons on the Proposed Rule, Improving Wage Protections
for the Temporary and Permanent Employment of Certain Foreign Nationals in
the United States; DOL Docket No. ETA-2026-0001; RIN 1205-AC30
Dear Administrator Pasternak:
My name is Kelly A. Simons. I am a partner at Kramer Partners, LLP, where I counsel employers on
employment-based immigration. My clients include public and private universities, academic medical
centers and safety-net teaching hospitals, independent and faith-based non-profits, public school
systems, and private companies ranging from venture-backed startups to established mid-market
firms. I submit this comment in my own name and on the basis of my own practice experience. It reflects
my independent analysis of the Proposed Rule1 and should be evaluated on its own terms.

SUMMARY OF POSITION
The Proposed Rule should be withdrawn. It cannot be squared with the text of the Immigration
and Nationality Act, which ties the prevailing wage to the local “area of employment” and to
wage levels “commensurate with experience, education, and the level of supervision,” and
which requires the wage determination to rest on “the best information available.” The
Department’s proposal substitutes a results-first percentile target for that statutory inquiry;
it would raise costs by amounts the agency never honestly measured for the universities,
hospitals, school districts, non-profits, and small companies that anchor my practice; and it
would do so by upsetting two decades of settled reliance. If the Department proceeds
notwithstanding these defects, it must repair the methodology and adopt a genuine, multiyear transition with protection for in-process cases.

1. THE PROPOSED RULE CONFLICTS WITH THE TEXT OF THE INA.
I begin with the statute because the Department barely engages it. Congress did not authorize the
Department to peg prevailing wages to whatever percentile produces a desired average. It directed

1Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United

States, 91 FR 15454 (Mar. 27, 2026) (“Proposed Rule” or “NPRM”).

Comment of Kelly A. Simons — DOL Docket No. ETA-2026-0001 — Page 1 of 7

something narrower and more specific. Three statutory commands constrain this rulemaking, and the
Proposed Rule is in tension with each.
First, the wage must reflect the local area of employment.2 Second, a government survey must yield
levels “commensurate with experience, education, and the level of supervision”—that is, levels that
actually track the skill content of the job.3 Third, the certified wage must rest on “the best information
available” at the time of filing.4 A methodology that inflates every level by the same mechanical step—
moving Levels I through IV to the 34th, 52nd, 70th, and 88th percentiles regardless of the occupation’s
actual education or supervision profile—honors none of these commands. It does not make the figures
more “commensurate” with skill; it simply makes them larger. And by pushing the published figures
above genuine market wages (a point I develop in Argument 3), it makes the Online Wage Library less
reliable as “the best information available,” not more.
The Department also cannot evade the statute by pointing to the existing “higher of the actual or
prevailing wage” rule.5 That rule already guarantees that an employer may never pay a foreign worker
less than it pays comparable U.S. workers. If the concern is that some employers underpay, the lawful
answer is enforcement of that existing command, not a wholesale percentile increase that overrides the
statutory link between wages and skill.

2. THE ECONOMIC HARM TO THE SECTORS I REPRESENT IS SEVERE AND LARGELY
UNEXAMINED.
The heart of my objection is practical. The Department’s preamble discusses software developers and
computer systems analysts and projects a tidy aggregate cost. That is not the world my clients live in.
Let me describe, concretely, what this rule would do to the institutions I advise.
a. Public and private universities.
Universities sponsor across a vast range of occupations—faculty, postdoctoral researchers, clinical
instructors, lab scientists, librarians, and specialized administrators. Educational-services employers
filed more than 45,530 labor condition applications in FY 2025 alone.6 When the wage floor for a
sponsored postdoctoral researcher jumps, a grant-funded principal investigator does not receive a
larger grant; the budget is fixed and often tied to a named recipient. The result is fewer postdoctoral
lines, shorter appointments, and stalled research—precisely the harms a coalition of higher-education
institutions documented when they challenged the materially identical 2020 rule.7 Smaller colleges that
compete on affordability cannot raise an entire faculty pay band to avoid pay-equity exposure, so they
will simply stop sponsoring.

2INA § 212(n)(1)(A)(i)(II); 8 U.S.C. § 1182(n)(1)(A). DOL defines the “area of intended employment” as the area within

normal commuting distance of the place of employment. 20 C.F.R. § 655.715.
38 U.S.C. § 1182(p)(4) (requiring at least four wage levels “commensurate with experience, education, and the level of
supervision”).
4INA § 212(n)(1)(A)(i); see also 20 C.F.R. § 655.731(a)(2) (employer may rely on a DOL survey, an independent authoritative
source, or another legitimate source).
58 U.S.C. § 1182(n)(1)(A)(i)(I)-(II); 20 C.F.R. §§ 655.731(a), 656.40 (required wage is the higher of the actual or prevailing
wage).
62026 Active Hiring by NAICS Industry (H-1B LCA), https://www.myvisajobs.com/reports/h1b/industry/ (educationalservices employers filed more than 45,530 LCAs in FY 2025).
7Br. for the Am. Council on Educ. and 23 Other Higher Educ. Orgs. as Amici Curiae, Purdue Univ. v. Scalia, 2020 WL
7340156 (D.D.C. Dec. 14, 2020).
Comment of Kelly A. Simons — DOL Docket No. ETA-2026-0001 — Page 2 of 7

b. Academic medical centers and safety-net hospitals.
Teaching hospitals rely on H-1B physicians, residents transitioning to attending roles, and specialized
therapists to staff services that frequently lose money—trauma, behavioral health, and care in rural and
underserved areas. Physician compensation already sits well above OEWS survey figures because of
genuine shortages,8 so an inflated “prevailing” wage does not protect anyone; it simply raises the cost
of keeping a clinic open. A hospital that cannot absorb the increase closes the service line. The people
harmed are the patients who lose access, not a displaced U.S. worker who does not exist.
c. Public school systems.
This is the sector the Department ignores most completely. School districts sponsor special-education
teachers, bilingual educators, speech-language pathologists, and STEM instructors—roles in chronic,
documented shortage. Districts are funded by appropriations and millage, not by a market that can pass
through higher labor costs. An across-the-board increase in the required wage for a sponsored specialeducation teacher does not raise wages for American teachers; it forces a cash-strapped district to leave
the position vacant, enlarging class sizes and depriving children of services they are legally entitled to
receive. The Proposed Rule contains no analysis of public-employer budgets at all.
d. Non-profits.
Charitable research institutes, community clinics, and social-service agencies operate on donations and
program grants. Many are cap-exempt and many qualify as small entities, yet the Department’s smallentity analysis (Argument 4) never separately accounts for them, even though USCIS already identifies
non-profit sponsors for fee purposes.9 For these employers, a mandated wage increase is not a transfer
from employer to worker; it is a reduction in mission output—fewer clinic hours, fewer research
projects, fewer people served.
e. Private companies and small businesses.
My corporate clients include startups with fewer than thirty employees. For a young company, a single
sponsored engineer whose wage floor rises by tens of thousands of dollars can consume the margin that
would have funded the next U.S. hire. And because federal and state equal-pay obligations and basic
morale require comparable pay for comparable work, the increase does not stop at the sponsored
worker; it ripples through the team. The realistic small-business response is not higher pay all around—
it is a canceled requisition, a frozen headcount, or work sent offshore.
Across every one of these sectors the same mechanism operates: because the rule raises the floor only
where a foreign national fills the role, it creates a direct economic incentive to avoid foreign-born
candidates—including students and trainees already lawfully here—and it triggers compensation
“cascades” for incumbent U.S. employees that budget-constrained employers cannot fund. The
predictable outcome is fewer jobs, not higher wages. The H-1B program supports more than 580,000
workers across exactly these fields,10 yet the Department’s preamble estimates a total ten-year cost of
only $24.59 million.11 That figure is not credible, and its implausibility is itself evidence that the agency
never genuinely studied the institutions this rule would reshape.

8See, e.g., Doximity, Physician Compensation Report (2025) (documenting persistent shortages and above-survey physician

pay).
9USCIS, Small Entity Compliance Guide for the 2024 Fee Rule (Mar. 28, 2024) (reduced Form I-129 fee of $460 and
elimination of the $600 Asylum Program Fee for qualifying non-profits).
10USCIS, H-1B Authorized-to-Work Population Estimate (Sept. 30, 2019) (more than 580,000 individuals).
1191 FR at 15480 (estimating a $3.53 million annualized and $24.59 million ten-year cost at a 7% discount rate).
Comment of Kelly A. Simons — DOL Docket No. ETA-2026-0001 — Page 3 of 7

3. THE PERCENTILE TARGETS REST ON A CIRCULAR AND SELF-DEFEATING
METHODOLOGY.
Even setting the statute aside, the numbers do not hold together. The Department’s central exhibit is
the gap between the average actual wage it computed ($121,908) and the average prevailing wage
($111,717), which it treats as proof that prevailing wages are too low.12 But an employer cannot file an
LCA unless it will pay at least the prevailing wage, so every actual wage in that dataset is, by definition,
at or above the prevailing wage. The “gap” is not evidence of a defect; it is evidence that employers are
obeying the “higher of” rule and paying premiums when the market demands them. Congress created
separate actual-wage and prevailing-wage obligations precisely because it expected the two to differ.
The Level IV anchor compounds the problem. OEWS percentiles do not encode experience, education,
or supervision.13 The typical approved H-1B beneficiary was 34 years old in FY 2024,14 while the median
worker in professional and management occupations is 43.5.15 Anchoring Level IV at the 88th
percentile therefore benchmarks early- and mid-career professionals against a far older, more senior
population. Because median tenure with a single employer is only 3.9 years, 16 and the 2009 Guidance
can assign Level IV at just five years of experience,17 a defensible Level IV for professional occupations
sits far nearer the 50th percentile than the 88th. The Department selected a high-end target and backsolved the remaining levels to reach it—substituting numerical alignment for the statutory inquiry. That
is the hallmark of arbitrary action: the agency did not “examine the relevant data and articulate a
satisfactory explanation.”18
The entry-level figure is no better grounded. Since 1997 the Department has set Level I at the 17th
percentile;19 the Bureau of Labor Statistics—the Department’s own statistical agency—identifies the
10th-to-25th percentile as the entry-level band.20 The proposed 34th-percentile Level I exceeds that
ceiling, and the Department never explains why it is more correct than the 35th percentile it adopted
and then abandoned in 2021,21 or than the 45th it proposed and lost in 2020.22 Three different “correct”
entry-level percentiles in six years, with no change in the underlying labor market, is the definition of a
moving target.
The Department’s software-developer rationale also misuses its sources. The Occupational Outlook
Handbook’s word “typically” does not mean a degree is optional; the Ninth Circuit has squarely rejected

1291 FR at 15471. The Department computed an average prevailing wage of $111,717 and an average actual wage of $121,908

for the same LCAs (FY 2020-2025).
13U.S. Bureau of Labor Statistics, OEWS, https://www.bls.gov/oes/ (OEWS percentiles do not report or control for
experience, education, or supervision).
14U.S. Dep’t of Homeland Sec., Characteristics of H-1B Specialty Occupation Workers, FY 2024 (median age of approved
beneficiaries: 34).
15U.S. Bureau of Labor Statistics, Current Population Survey, Employed Persons by Detailed Occupation and Age (2024)
(median age in management/professional occupations: 43.5).
16U.S. Bureau of Labor Statistics, Employee Tenure Summary, https://www.bls.gov/news.release/tenure.nr0.htm (median
tenure with current employer: 3.9 years).
17Emp’t & Training Admin., Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs
(rev. Nov. 2009) (“2009 Guidance”).
18Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
19Prevailing Wage Policy for Nonagricultural Immigration Programs, General Administration Letter No. 2-98 (Oct. 31,
1997).
20U.S. Bureau of Labor Statistics, Occupational Employment and Wage Statistics, https://www.bls.gov/oes/earnings.htm;
Beyond Averages: Other Ways to Look at Occupational Wages, BLS Occ. Outlook Q. (Winter 2007-08).
21Strengthening Wage Protections, 86 FR 3608 (Jan. 14, 2021) (the 35th/53rd/72nd/90th percentiles), vacated, 86 FR
70729 (Dec. 13, 2021).
22Strengthening Wage Protections, 85 FR 63872 (Oct. 8, 2020) (proposing the 45th/62nd/78th/95th percentiles), set aside,
Chamber of Commerce of the U.S. v. U.S. Dep’t of Homeland Sec., 504 F. Supp. 3d 1077 (N.D. Cal. 2020).
Comment of Kelly A. Simons — DOL Docket No. ETA-2026-0001 — Page 4 of 7

that reading.23 O*NET—the source the Department actually uses for leveling—confirms that essentially
all software developer and occupational-therapist positions require a degree.24 Those two occupations
alone account for roughly forty percent of recent LCAs,25 which means the rule’s stated worry—that low
percentiles capture the “least educated” workers—is false for the bulk of the program.26 A reasoned rule
would map O*NET education data onto the OEWS levels rather than raising every occupation’s floor in
lockstep.
Taken together, these defects render the Proposed Rule arbitrary and capricious under 5 U.S.C. §
706(2)(A).27

4. THE SMALL-ENTITY ANALYSIS VIOLATES THE REGULATORY FLEXIBILITY ACT.
The Regulatory Flexibility Act, as amended, requires a genuine assessment of impact on small entities. 28
The Department’s analysis fails on multiple fronts, and several of those failures map directly onto my
client base.
— Undercounted universe. The Department asserts 13,602 small H-1B employers29 without
disclosing its criteria or data. Because small firms are 99.9% of all U.S. businesses,30 and because
PERM sponsors include small employers with workers in E, L, R, and TN status who never filed
an H-1B, the true affected universe is far larger.
— Understated per-entity cost. The $20,298 “average wage cost per small entity”31 counts only
the sponsored worker’s raise and ignores the pay-equity cascade I described above; and the
estimate that one hour of HR time ($60.94) suffices to evaluate the change 32 is unrealistic—
twenty hours per affected worker is closer to reality. The rule also presents recurring annual
obligations as one-time costs and omits more than 7,000 NAICS codes beyond its top ten.33
— Small non-profits ignored. The analysis never separately addresses small non-profit
sponsors, even though USCIS data identify them for reduced-fee purposes.34 For community
clinics, research institutes, and independent schools, the omission hides the rule’s most
damaging effects.

23Innova Sols., Inc. v. Baran, 983 F.3d 428, 432 (9th Cir. 2020) (“There is no daylight between typically needed in the OOH

and normally required” under the H-1B criteria).
24O*NET OnLine, Summary Report for 15-1252.00 (Software Developers), https://www.onetonline.org/link/summary/151252.00.
25OFLC, LCA Programs Selected Statistics, FY 2026 Q1,
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/LCA_Selected_Statistics_FY2026_Q1.pdf.
26O*NET OnLine, Summary Report for 29-1122.00 (Occupational Therapists),
https://www.onetonline.org/link/summary/29-1122.00.
275 U.S.C. § 706(2)(A).
28Regulatory Flexibility Act, 5 U.S.C. §§ 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Pub. L. No. 104-121.
2991 FR at 15493 (“13,602 unique small H-1B employers” meeting SBA size standards).
30Small firms are 99.9% of all U.S. businesses. U.S. Chamber of Commerce, The State of Small Business Now.
3191 FR at 15493 (“average wage cost per small entit[y] is estimated at $20,298”).
3291 FR at 15493-94 (estimating one hour of HR-professional time, valued at $60.94).
3391 FR at 15494 & Exhibits 11-23 (top-ten small-business NAICS codes, with average costs from roughly $14,000 to nearly
$80,000).
34USCIS, Small Entity Compliance Guide for the 2024 Fee Rule (Mar. 28, 2024) (USCIS separately identifies non-profit
petitioners for reduced-fee eligibility, data available to DOL).
Comment of Kelly A. Simons — DOL Docket No. ETA-2026-0001 — Page 5 of 7

— Stale significance threshold. The 3%-of-revenue threshold borrowed from pre-2019 rules
understates impact after years of elevated inflation,35 making the conclusion that only 15% of
small entities are significantly affected unreliable.
The asserted eight-year implementation horizon is also illusory. Workers change employers, and a new
employer must apply the current July 1 wage levels at once. With 1,285,721 total LCA approvals in FY
2024 against limited annual cap numbers,36 large numbers of workers move each year and would feel
the increase immediately; and because the PERM green-card process generally must begin by a
worker’s third H-1B year and requires a prevailing-wage attestation at filing,3738 the real impact arrives
in months. The Department must redo this analysis before finalizing any rule.

5. ALTERNATIVE WAGE SURVEYS SHOULD BE EXPANDED, NOT CURTAILED.
The Proposed Rule signals that the Department may restrict alternative wage surveys to “limited
circumstances.”39 That is exactly backwards, and it contradicts the regulations, which treat DOL surveys
and independent authoritative surveys as equally legitimate sources.40 My corporate and institutional
clients license commercial compensation surveys precisely because those surveys ask employers what
they actually pay at defined education and experience levels—information OEWS does not capture. By
inflating the OEWS percentiles above real market wages, the rule would widen the gap between the
government’s figures and genuine market data, defeating its own stated objective of accuracy and
undermining the statutory “best information available” standard.
OEWS data are, moreover, frequently incomplete: the Department aggregates detailed occupations,
reports no data for many occupations, substitutes state or national figures for local ones, and caps entire
occupations at a single rate when wages are “too high to provide an estimate.”41 Until OEWS collection
is re-engineered to capture education and experience, the Department should broaden—not narrow—
reliance on validated private surveys, and could contract with survey providers to streamline review.

6. ANY FINAL RULE MUST INCLUDE A GENUINE PHASED TRANSITION.
If the Department proceeds over these objections, it cannot lawfully impose the new floors overnight.
Its own 2021 rule phased increases in over eighteen months for most positions and over three and a
half years for workers on track to permanent residence,42 recognizing that an abrupt, dramatic increase
can be counterproductive by forcing the very layoffs the rule purports to prevent. The current proposal
would instead apply the new levels to any prevailing-wage request pending on the effective date,43
upending applications properly filed under the existing standard. At a minimum, the Department must
(1) exempt requests pending on the effective date; (2) grandfather PERM cases already filed or in
recruitment; (3) phase remaining increases over multiple years; and (4) protect H-1B, H-1B1, and E-3
extensions for workers already employed in reliance on the current methodology.

35U.S. Bureau of Labor Statistics, Consumer Price Index Summary, https://www.bls.gov/news.release/cpi.nr0.htm.
3691 FR, Exhibit 4 (1,285,721 total LCA approvals, FY 2024), against limited annual cap allocations.
378 C.F.R. § 214.2(h)(13)(ii)(D); AC21 §§ 104(c), 106(a)-(b).
38ETA Form 9089, Section I, Attestation No. 1; 20 C.F.R. §§ 656.40, 656.41.
3991 FR at 15479 (acknowledging that, in “limited circumstances,” private surveys may best reflect market wages).
4020 C.F.R. §§ 655.731(a)(2), 656.40(b) (alternative wage sources).
41OFLC, Technical Release Notes for the OEWS Update, Wage Year 2025-26 (eff. July 1, 2025) (documenting aggregated,

missing, substituted, and capped wage data).
4286 FR 3608 (Jan. 14, 2021) (two-step phase-in over eighteen months; four-step phase-in over three-and-a-half years for
workers on track to permanent residence).
4391 FR at 15478 (applying new levels to prevailing wage requests pending on the effective date).
Comment of Kelly A. Simons — DOL Docket No. ETA-2026-0001 — Page 6 of 7

7, Coxcr,usrox.
I do not write to defend wage abuse. Where a particular emplol'er underpays, the Department should
enforce the "higher of' requirement, deplof its Secretary-certified investigatio.rr, und rel1,'on the ne*.
n'age-lveighted selection process-tools that alreadl'target genuine bad actors.++ What the Department
may not do is dismantle a methodolo5'on n'hich unir-ersities, hospitals, school districts, non-profits,
and small companies have relied for more than tn'ent]')'ears, on the strength of a circular bencL'rark,
a missing public-sector and non-profit anait"sis, and percentile targets untethered from the statute's
focus on skill and locality. I respectfullr' urge the Department to u'ithdrarv the Proposccl Rule, and-if it
proceeds-to correct the Level I and Ler-el IV methodologies, presen'e and expand alternati'e sun-e\.s,
reclo the small-entity analysis, and adopt a reai multi-l'ear transition that protects pending and inprocess cases.

Thank vou for considering these comments. I am glacl to pror-ide any further ilformation that *-6uld
assist the Department.
Rcspectfully submitted,

t , \-L- $imons
.///

Kelly/A.

Partner, Kramer Partners, LLP
315 W. Ponce de Leon Avcnue, Suitc 4Bo, l)ecatur, Geolgiir llool3o
'l'elephone: (4o4) 37r-t835 | n,rvtv.kranrer.ir.rrntiqlatiur.r.eunt

++U'S' Dep't of Labor, "Project Firewall" (Secretan'-cenified LCA investigations); go FR
6og64 (Dec. zg, zoz5) (*,eighted,
rvage-based H-tB selection).
Comment oiKelh A. Sin-ron.-s DoL Docket \o. ET,\-2o2b-ooor

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