Public Comment – DOL Docket No. ETA-2026-0001

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May 25, 2026
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
Submitted via www.regulations.gov
Re:

OMB control number 1205-0508.
DOL Docket No. ETA-2026-0001; RIN 1205-AC30
Improving Wage Protections for the Temporary and Permanent Employment of Certain
Foreign Nationals in the United States

Dear Mr. Pasternak:
I submit these comments in response to the Department of Labor’s (“Department” or “DOL”) notice of
proposed rulemaking published in the Federal Register on March 27, 2026 (the “Proposed Rule”), which
would revise the prevailing wage methodology used by the Office of Foreign Labor Certification
(“OFLC”) in the H-1B, H-1B1, and E-3 nonimmigrant programs and in the Program Electronic Review
Management (“PERM”) process.1
I am an immigration attorney whose practice centers on employment-based immigration. My clients
include public and private colleges and universities, academic medical centers and teaching hospitals,
non-profit research institutes and charitable organizations, public school systems, and a wide range of
private companies—many of them small businesses. Across these sectors, my clients depend on the H1B, H-1B1, E-3, and PERM programs to recruit and retain the skilled professionals their missions and
operations require. I write to convey, from that vantage point, the serious and concrete economic harm the
Proposed Rule would inflict on these employers, on the United States and foreign workers they employ,
and on the students, patients, and communities they serve.
In short, the Proposed Rule would raise the four prevailing wage levels from approximately the 17th, 34th,
50th, and 67th percentiles of the Occupational Employment and Wage Statistics (“OEWS”) wage

1

Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United
States, 91 FR 15454 (Mar. 27, 2026).
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distribution to the 34th, 52nd, 70th, and 88th percentiles, respectively. It would do so on the basis of a thin
and outdated evidentiary record, in disregard of more than two decades of reliance, without any reasoned
assessment of the rule’s effects on the institutions that drive American research, education, public health,
and small-business innovation, and without acknowledging that the asserted problem is already addressed
by existing law. For the reasons set out below, I respectfully urge the Department to withdraw the
Proposed Rule. Should the Department nonetheless proceed, it must, at a minimum, correct the
methodological defects identified herein and provide a meaningful phased transition.
I.
The Current Four-Tier Wage Structure Has Served Workers and Employers Well for
More Than Two Decades.
The four-tier prevailing wage structure now in effect was adopted in 2005 to implement the H-1B Visa
Reform Act of 2004, which amended INA § 212(p) to require at least four wage levels “commensurate
with experience, education, and the level of supervision.” The Department’s 2005 guidance2 replaced the
prior two-level system with Levels I (entry), II (qualified), III (experienced), and IV (fully competent), set
at roughly the 17th, 34th, 50th, and 67th percentiles of the OEWS distribution. The 2009 guidance3 has
governed OFLC prevailing wage determinations for the PERM, H-1B, H-1B1, and E-3 programs ever
since, without altering those percentiles.
The Department attempted to abandon this structure once before. Its 2020 interim final rule would have
raised the levels to roughly the 45th, 62nd, 78th, and 95th percentiles;4 it was set aside in multiple lawsuits
for failure to observe notice-and-comment requirements.5 A January 2021 final rule recalibrated Levels I
and IV to the 35th and 90th percentiles,6 but was repeatedly delayed and ultimately vacated, after which
the Department resumed using the long-standing methodology.7 Now, four years later, the Department
again declares that the methodology it has applied for some twenty years is “inaccurate” and seeks to raise
the levels to the 34th, 52nd, 70th, and 88th percentiles. The history matters: stakeholders have built their
institutions around this system, and the Department has twice failed to displace it.
II.

The Proposed Rule Disregards Profound Reliance Interests.

Employers must pay H-1B, H-1B1, E-3, and PERM employees the higher of the actual wage or the
prevailing wage for the occupation in the area of employment.8 For more than twenty years, my clients
have built multi-year staffing plans, grant budgets, faculty and clinical compensation scales, and long2

ETA Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs (May 2005).
Employment and Training Administration, Prevailing Wage Determination Policy Guidance for Nonagricultural
Immigration Programs (Revised Nov. 2009).
4
Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 85
FR 63872 (Oct. 8, 2020).
5
See Chamber of Commerce of the U.S. v. U.S. Dep’t of Homeland Sec., 504 F. Supp. 3d 1077 (N.D. Cal. 2020); Purdue
Univ. v. Scalia, 2020 WL 7340156 (D.D.C. Dec. 14, 2020); ITServe All., Inc. v. Scalia, 2020 WL 7074391 (D.N.J. Dec. 3,
2020).
6
Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 86
FR 3608 (Jan. 14, 2021).
7
86 FR 70729 (Dec. 13, 2021); see also Chamber of Commerce v. Dep’t of Homeland Sec., No. 20-cv-07331 (N.D. Cal. June
23, 2021).
8
8 U.S.C. § 1182(n)(1)(A)(i)(I)-(II); see also 20 C.F.R. § 655.731(a).
3

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term immigration strategies around prevailing wage floors corresponding to the 17th, 34th, 50th, and 67th
percentiles. Abruptly raising those floors to the 34th, 52nd, 70th, and 88th percentiles would materially
increase labor costs for employers that organized their compensation systems in reliance on the
Department’s settled policy. When an agency changes a longstanding position, it must take account of the
“serious reliance interests” its prior policy engendered. The Proposed Rule does not.
The reliance harm is acute in the very sectors my clients occupy. Educational services institutions alone
filed more than 45,530 labor condition applications in FY 2025.9 In litigation over the materially identical
2020 rule, the American Council on Education and twenty-three other higher-education organizations
documented the damage such increases would cause:10 university-affiliated medical centers would be
unable to recruit and retain physicians and specialists who serve rural and underserved communities;
multi-year, recipient-specific research grants would be stranded when their budgets could no longer cover
the mandated wages; and smaller liberal-arts colleges, which prioritize affordability, simply could not
absorb expenditures of this magnitude. Those harms apply with full force here.
These pressures do not stop at the foreign worker. Because federal and state equal-pay laws, collective
bargaining structures, and basic norms of pay equity require comparable compensation for comparably
situated employees, an artificial increase in the wage floor for a sponsored worker cascades into raises for
entire cohorts of United States faculty, clinicians, researchers, and staff. For a university, hospital, nonprofit, or school district operating on a fixed appropriation, grant, or tuition base, the result is not higher
pay across the board but fewer positions, frozen hiring, shuttered programs, and curtailed services. An
increase that prices skilled professionals out of these institutions advances neither the interests of United
States workers nor the statutory purpose.
Foreign workers and their families have relied just as heavily. They have accepted positions, purchased
homes, enrolled children in local schools, and sequenced PERM recruitment and Form 9089 filings around
prevailing wage determinations issued under the existing framework, on the reasonable expectation that
any change would be gradual and clearly signaled. The H-1B program alone supports more than 580,000
workers across technology, manufacturing, finance, healthcare, education, and research. 11 In FY 2024 the
Department certified 502,374 H-1B applications,12 yet the Department’s own preamble estimates only a
$3.53 million annualized and $24.59 million ten-year cost13—figures that cannot be reconciled with the
sweeping wage increases the rule would impose and that confirm the reliance interests at stake were never
seriously weighed.

9

See 2026 Active Hiring by NAICS Industry (H-1B LCA), available at https://www.myvisajobs.com/reports/h1b/industry/
(educational services institutions filed more than 45,530 LCAs in FY 2025).
10
See Brief for the American Council on Education and 23 Other Higher Education Organizations as Amici Curiae in
Support of Plaintiff’s Motion for Preliminary Injunction, Purdue Univ. v. Scalia, 2020 WL 7340156 (D.D.C. Dec. 14, 2020).
11
U.S. Citizenship & Immigration Services, H-1B Authorized-to-Work Population Estimate (Sept. 30, 2019).
12
91 FR at 15455 (the Department certified 502,374 H-1B applications in FY 2024).
13
91 FR at 15480 (estimating an annualized cost of $3.53 million and a total ten-year cost of $24.59 million at a 7 percent
discount rate, in 2024 dollars).
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III.

The Proposed Rule Is Arbitrary and Capricious.

a.

The Department Has Not Shown That Foreign Workers Are Systematically Underpaid.

A central premise of the Proposed Rule is that H-1B and other foreign workers are routinely paid less than
comparable United States workers, giving employers an incentive to substitute cheaper foreign labor. The
rule offers generalized concerns and selective studies, but no systematic data comparing wages paid to
foreign workers with those paid to similarly situated United States workers—matched by occupation,
geography, experience, employer type, and duties. It does not disaggregate by sector. Alleged abuses by
a narrow subset of IT staffing firms are treated as representative of the entire H-1B labor market, including
the universities, teaching hospitals, non-profit research institutes, and cap-exempt employers that make
up much of my practice and that operate under wholly different compensation structures. An agency must
“examine the relevant data and articulate a satisfactory explanation for its action.”14 Reliance on anecdote
and narrow studies to justify a wholesale methodological overhaul is the opposite of reasoned
decisionmaking.
b.

The Rule Cannot Be Reconciled with the Existing “Higher Of” Requirement.

Existing regulations already require employers to pay the higher of the prevailing wage or the actual wage
paid to other employees with similar experience and qualifications. That dual requirement is designed
precisely to prevent foreign workers from being used as a cheaper substitute for United States workers. If
an employer pays its United States workers wage X, it must pay the foreign worker at least X, regardless
of the prevailing wage; if the prevailing wage is higher, the employer must meet it. The Department never
explains how pervasive underpayment could occur if these protections are enforced. If the concern is
evasion by particular bad actors, the rational response is targeted enforcement, audits, and focused
adjustments—not an across-the-board increase that punishes the law-abiding institutions that make up the
overwhelming majority of program users.
c.

The Rule Relies on Outdated Evidence and Ignores Recent Reforms.

The studies on which the Department leans predate significant reforms that have already changed
employer incentives. The beneficiary-centric H-1B registration rule15 and the subsequent weighted, wagebased selection process16 reduce the advantage of multiple registrations and reward higher offered wages,
directly advancing the wage-protection objectives the Department invokes. The Department has also
announced Secretary-certified LCA investigations to police compliance.17 By relying on historical
critiques tied to the prior system while ignoring these intervening reforms, the Department has failed to
consider “an important aspect of the problem,” rendering the rule arbitrary and capricious.18

14

Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
89 FR 7456 (Feb. 2, 2024) (beneficiary-centric selection).
16
90 FR 60864 (Dec. 29, 2025) (weighted, wage-based selection).
17
See U.S. Department of Labor, “Department of Labor Launches Project Firewall to Protect America’s Highly Skilled
Workforce,” announcing Secretary-certified LCA investigations.
18
5 U.S.C. § 706(2)(A).
15

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IV.
The Wage-Level Assignments Are Inconsistent with the Department’s Own Prior Rules
and Record.
The Department’s 2020 IFR and 2021 final rule were aimed at the same programs and the same goal, and
the Department solicited extensive public input through a 2021 Request for Information on how specific
occupations map to OEWS data and how education, experience, and supervision should be reflected in
each level. Those rules adopted percentiles of 45/62/78/95 and then 35/53/72/90, respectively, and even
then included transition periods. The current rule proposes yet another set—34/52/70/88—without
transparently explaining why the same or similar occupations now warrant materially different levels, and
without explaining how the chosen percentiles reflect occupational differences in education, experience,
and supervision rather than an across-the-board adjustment. These shifting numbers, untethered to any
change in occupational content, reflect policy preference rather than a stable, evidence-based
methodology—precisely the kind of unexplained inconsistency that 5 U.S.C. § 706(2)(A) forbids.19
a.

The Rule Fails to Assess Discrimination and Displacement Effects on United States Workers.

The Proposed Rule emphasizes a hypothesized benefit to United States workers while ignoring foreseeable
harms to them. First, by imposing sharply higher wage floors only where a foreign worker fills the role,
the rule creates a powerful economic incentive to avoid hiring or sponsoring foreign-born candidates—
including students, postdocs, and trainees already in the United States—thereby increasing the risk of de
facto discrimination the statute forbids. Second, in the budget-constrained settings where my clients
operate, the assumption that higher foreign-worker wages will lift United States wages is unrealistic; the
more likely result is eliminated positions, redirected funds, and shrunken training pipelines—postdoctoral
fellowships, residencies, and junior research and teaching roles—that feed the domestic workforce. Third,
sharply higher entry wages for new foreign hires compress or freeze incumbent United States employees’
pay, or force employers to cancel planned positions and outsource work. The Department offers no
quantitative analysis of any of these effects.
V.

If the Department Proceeds, It Must Revise Its Methodology for Levels I and IV.

Since 1997 the Department has set the entry-level (Level I) wage at the 17th percentile.20 The Bureau of
Labor Statistics—the Department’s own principal labor-economics agency—identifies the 10th to 25th
percentile as the appropriate range for entry-level wages.21 The proposal to set Level I at the 34th
percentile is inconsistent with that standard and with historical practice. When Congress amended the
wage provisions in 1998, it was aware of the percentiles DOL used and left them undisturbed, 22 and
subsequent bills to raise the floor have repeatedly failed to pass.23
19

5 U.S.C. § 706(2)(A); see also State Farm, 463 U.S. at 43 (an agency must articulate “a rational connection between the
facts found and the choice made”).
20
Prevailing Wage Policy for Nonagricultural Immigration Programs, General Administration Letter No. 2-98 (Oct. 31,
1997).
21
U.S. Bureau of Labor Statistics, Occupational Employment and Wage Statistics, https://www.bls.gov/oes/earnings.htm; see
also Beyond Averages: Other Ways to Look at Occupational Wages, BLS Occupational Outlook Quarterly (Winter 20072008) (the 10th percentile is sometimes used as an estimate of starting salaries).
22
American Competitiveness and Workforce Improvement Act of 1998, Title IV of Pub. L. No. 105-277.
23
Prevailing Wage Requirements for the H-1B, H-1B1, and E-3 Workers in Specialty Occupations, Cong. Research Serv.
(Jan. 30, 2025).
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The Department’s justification is internally inconsistent. Having previously called the methodology
“outmoded,”24 and then retreated from the 45th to the 35th percentile for Level I to “account for small
businesses and rural employers,”25 the Department now proposes the 34th percentile without explaining
why it is more correct than the 35th it abandoned, or why Level I should exceed the 25th-percentile ceiling
BLS identifies for entry-level work.
The Department’s premise is also self-defeating. It argues that wages must rise because employers pay
more than the prevailing wage,26 pointing to its calculation that the average actual wage ($121,908)
exceeds the average prevailing wage ($111,717) for FY 2020-2025. But that gap shows the system
working: an employer may not even file an LCA unless it will pay at least the prevailing wage, so every
actual wage is necessarily at or above the prevailing wage. Congress created separate “actual wage” and
“prevailing wage” obligations precisely because it understood the two would differ.27 Treating that lawful,
statutorily anticipated difference as proof of failure is irrational. The Department further invokes recentgraduate unemployment rates and layoffs28—but prevailing wage percentiles have never been dynamic,
and the Department offers no parameters for adjusting them as those conditions change. Enforcement of
program terms belongs to the Wage and Hour Division’s existing tools, not to an inflated percentile.29
The Department’s reliance on the Occupational Outlook Handbook to suggest that software developers
do not require a bachelor’s degree misreads its own sources. The Ninth Circuit has rejected exactly that
distortion of the word “typically.”30 Since 2009 the Department has relied on O*NET, not the Handbook,
for prevailing wage purposes;31 and O*NET confirms that essentially all software developer positions
require at least a bachelor’s degree.32 The same is true of occupational therapists, where O*NET requires
a bachelor’s or (for a supermajority) a master’s degree. 33 Together these two occupations account for
roughly forty percent of recent LCAs.34 Because nearly all of those positions plainly require degreed, H1B-caliber workers, the Department’s rationale—that the existing percentile improperly includes the
“least educated and experienced” workers—does not hold, and a one-size-fits-all increase is arbitrary. A

24

85 FR 63888 (Oct. 8, 2020).
86 FR at 3618, 3639-40 (lowering Level I to the 35th percentile and citing the need to account for small businesses and
rural employers).
26
91 FR at 15470-71. The Department itself calculated an average prevailing wage of $111,717 and an average actual wage
of $121,908 paid to the same beneficiaries for FY 2020-2025.
27
See INA § 212(n); 8 U.S.C. § 1182(n)(1)(A). Congress created separate “actual wage” and “prevailing wage” obligations
precisely because it understood the two would not always be equal.
28
91 FR at 15473.
29
See https://www.dol.gov/agencies/whd/immigration/h1b (Wage and Hour Division enforcement tools).
30
Innova Sols., Inc. v. Baran, 983 F.3d 428, 432 (9th Cir. 2020).
31
See https://www.bls.gov/ooh/computer-and-information-technology/software-developers.htm.
32
See O*NET OnLine, Summary Report for 15-1252.00 (Software Developers),
https://www.onetonline.org/link/summary/15-1252.00.
33
See O*NET OnLine, Summary Report for 29-1122.00 (Occupational Therapists),
https://www.onetonline.org/link/summary/29-1122.00.
34
See Office of Foreign Labor Certification, LCA Programs Selected Statistics, FY 2026 Q1,
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/LCA_Selected_Statistics_FY2026_Q1.pdf.
25

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more sophisticated approach would incorporate O*NET education data into the OEWS levels so that
occupations requiring a degree are not penalized for the composition of unrelated occupations.35
a.

The Level IV Percentile Is Not Supported by Reasoned Analysis or BLS Data.

The choice of the 88th percentile for Level IV is not derived from any observable labor-market
segmentation. The Department selects a “Benchmark Value”—an aggregate average of OEWS wages—
and then back-solves the percentiles to reproduce that target, allowing the statutory spacing formula to
propagate the choice across Levels II and III.36 This is circular: the rule treats the gap between average
actual wages and prevailing wages as proof that levels are too low, defines the benchmark from the same
averages, and then “validates” the new percentiles by showing they close the gap. It never demonstrates
that the 88th percentile corresponds to any identifiable group of “similarly employed” workers.
Worse, OEWS percentiles do not encode experience, education, or supervision at all. 37 The typical H-1B
beneficiary is early- to mid-career—the median approved beneficiary in FY 2024 was 34 years old38—
whereas the median worker in management, professional, and related occupations is 43.5.39 Anchoring
Level IV at the 88th percentile thus benchmarks ordinary senior-level roles against a much older, more
experienced subset of the workforce. Indeed, because more than half of professional O*NET occupations
sit in Job Zone 4, where the 2009 Guidance assigns Level IV at just five years of experience, and because
median tenure with a single employer is only 3.9 years,40 a Level IV wage for professional occupations is
far closer to the 50th percentile than to the 88th. The Department’s high-end anchor is a policy choice
dressed up as a measurement.
VI.

Alternative Wage Surveys Must Be Preserved, Not Curtailed.

The regulations recognize multiple equally legitimate sources of prevailing wage data, and provide that,
absent a collective bargaining agreement, an employer “is not required to use any specific methodology”
and “may utilize any of these options.”41 The statute requires that the wage attestation rest on “the best
information available” at the time of filing.42 Private compensation surveys—such as those my corporate,
hospital, and university clients license for organization-wide benchmarking—are built for the purpose of
measuring what employers actually pay at defined education and experience levels, and many have been
accepted by the Department for decades. By inflating the OEWS percentiles, the Proposed Rule would

35

See O*NET, Overview, https://www.onetcenter.org/overview.html.
91 FR at 15471.
37
U.S. Bureau of Labor Statistics, Occupational Employment and Wage Statistics, https://www.bls.gov/oes/ (OEWS wage
percentiles do not report or control for experience, education, or supervisory level).
38
See U.S. Dep’t of Homeland Security, Characteristics of H-1B Specialty Occupation Workers, Fiscal Year 2024 (median
age of approved beneficiaries was 34).
39
U.S. Bureau of Labor Statistics, Current Population Survey, Employed Persons by Detailed Occupation and Age (2024)
(median age in management, professional, and related occupations of 43.5).
40
U.S. Bureau of Labor Statistics, Employee Tenure Summary, https://www.bls.gov/news.release/tenure.nr0.htm (median
tenure with current employer of 3.9 years).
41
20 C.F.R. § 655.731(a)(2); see also 20 C.F.R. § 656.40.
42
INA § 212(n)(1)(A); 8 U.S.C. § 1182(n)(1)(A).
36

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drive a wedge between the government’s figures and genuine market data, defeating the rule’s own stated
objective of wage accuracy.
Yet the Proposed Rule signals that the Department may now confine alternative surveys to “limited
circumstances.”43 That is backwards. OEWS data are frequently incomplete: the Department aggregates
detailed occupations into broad ones, reports no data for many occupations, substitutes state or national
figures for local ones, or defaults entire occupations to a single rate when wages are “too high to provide
an estimate.”44 Rather than restricting private surveys, the Department should expand their role—and
could contract directly with survey providers to ease validation. Notably, the current percentiles track
reputable private survey results far more closely than the inflated percentiles would; a Level IV software
developer wage in Chicago derived from a leading private survey is comparable to the current OEWS
Level IV figure and well below what the Proposed Rule would produce.
VII.

The Regulatory Alternatives Should Be Abandoned.

a.

Experience Benchmarking.

The experience-benchmarking alternative would tie the required wage to the individual worker’s
estimated education and experience rather than to the occupation. That is difficult to square with a statute
that ties wages to the occupation and the local labor market, and it would yield different wage obligations
for identical positions depending on the chosen candidate, undermining predictability. The methodology
layers Mincer earnings equations onto American Community Survey data and applies the result to OEWS
percentiles—combining datasets built on different foundations (employer-reported versus self-reported
household income), relying on “potential experience” estimated from age and education that ignores
career interruptions common among caregivers and career-changers, and producing a synthetic figure
observed in neither dataset. It would also create perverse incentives to favor less-qualified candidates to
reduce cost, increase administrative burden by requiring wage determinations only after a specific
candidate is identified, and raise comparison-group problems because the ACS population is not limited
to United States workers as the statute defines them.
b.

National Wage Standard for Remote Work.

A national wage standard would read the statutory “area of employment” requirement out of the INA.45
Labor markets vary enormously by region; a national standard would inflate wages in lower-cost areas—
including the rural communities and emerging hubs where many of my school-district, public-employer,
and small-business clients operate—while distorting them in high-cost metros. Remote work has not
eliminated the relevance of geography, and the Department already has tools to address remote
arrangements without discarding the statutory framework.

43

91 FR at 15479 (acknowledging that private surveys may, in limited circumstances, provide the most accurate reflection of
market wages).
44
Office of Foreign Labor Certification, Technical Release Notes for the OEWS Update, Wage Year 2025-26 (effective July
1, 2025).
45
INA § 212(n)(1)(A). For H-1B workers, 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.
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VIII. The Department Underestimates the Disproportionate Impact on Small Businesses and
Small Non-Profits.
The Proposed Rule’s small-entity analysis is inadequate under the Regulatory Flexibility Act and the
Small Business Regulatory Enforcement Fairness Act.46 The Department asserts that 13,602 unique small
H-1B employers met the SBA size standards47 but does not disclose the underlying criteria or data; given
that small firms constitute 99.9% of all United States businesses,48 the true number of affected small
entities is almost certainly far higher.
The financial analysis is likewise far too low. The Department’s “average wage cost per small entity” of
$20,298 counts only the foreign worker’s raise and ignores the cascading increases that pay-equity
obligations force across the rest of the workforce. Its estimate that one hour of a human-resources
professional’s time ($60.94) suffices to assess the rule’s impact is unrealistic; a realistic figure is at least
twenty hours—roughly $1,218—per affected worker.49 Its 3-percent-of-revenue significance threshold,
borrowed from rules predating the post-2019 inflationary period, understates impact in today’s
environment,50 so its conclusion that only 15 percent of small entities would be significantly affected is
unreliable. And while the rule details the top ten NAICS codes—with average costs ranging from roughly
$14,000 to nearly $80,000—it omits the more than 7,000 other small-business NAICS codes that sponsor
workers, and treats recurring annual wage obligations as a one-time cost.51
Critically for my practice, the Department’s analysis is silent on small non-profits. Many of my clients—
community clinics, research institutes, social-service agencies, and independent schools—are small nonprofit employers. USCIS already collects data identifying non-profit sponsors, having reduced their Form
I-129 fee from $780 to $460 and eliminated the $600 Asylum Program Fee,52 so the Department could
readily quantify this impact but did not. The rule also ignores small businesses that file PERM applications
for workers in E, L, R, or TN status who never held H-1B, H-1B1, or E-3 status. For these reasons, the
small-entity analysis should be redone before any rule is finalized.
Finally, the asserted eight-year implementation horizon is illusory. Workers change employers; new
employers must apply the current July 1 wage levels immediately. With total LCA approvals of 1,285,721
in FY 202453 against only limited annual cap numbers, large numbers of workers move between employers
each year and would feel the increase at once. And because an employer must generally file the PERMbased green-card process by the end of the worker’s fifth H-1B year—often beginning in year three54—

46

Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. No. 104-121; see also Regulatory Flexibility Act, 5
U.S.C. §§ 601-612.
47
91 FR at 15493.
48
Small businesses account for 99.9% of all U.S. firms. See U.S. Chamber of Commerce, The State of Small Business Now,
https://www.uschamber.com/small-business/state-of-small-business-now.
49
91 FR at 15493-94.
50
See U.S. Bureau of Labor Statistics, Consumer Price Index Summary, https://www.bls.gov/news.release/cpi.nr0.htm.
51
91 FR at 15494 & Exhibits 11-23.
52
USCIS, Small Entity Compliance Guide for the 2024 Fee Rule (Mar. 28, 2024) (reducing the Form I-129 fee for qualifying
non-profits from $780 to $460 and eliminating the $600 Asylum Program Fee).
53
91 FR, Exhibit 4 (listing 1,285,721 total LCA approvals for FY 2024).
54
8 C.F.R. § 214.2(h)(13)(ii)(D); see also AC21 §§ 104(c), 106(a)-(b).
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and must attest to paying the prevailing wage at the time of PERM filing, 55 the real-world impact would
arrive in months, not years.
IX.

At a Minimum, Any Final Rule Must Provide a Meaningful Phased Implementation.

If the Department nonetheless concludes after more than twenty years that higher floors are required, it
must mitigate the disruption. The Department’s own 2021 final rule recognized this, phasing increases in
over eighteen months for most positions and over three and a half years for workers on track to permanent
residence,56 in express acknowledgment that sudden increases can be “counterproductive” by triggering
layoffs that harm the very workers the rule purports to protect. The current proposal would instead apply
the new levels to any prevailing wage request pending on the effective date,57 upending applications
properly filed under the standard then in effect and destabilizing workers who have built lives and careers
here. At a bare minimum, the Department cannot apply a new rule to cases pending when it takes effect.
Any final rule should include multi-year transition periods, grandfathering for PERM applications already
filed or in recruitment, and protective treatment for H-1B, H-1B1, and E-3 extensions for workers already
employed under commitments made in reliance on the current methodology.
X.

The Department Should Modernize Its 2009 Prevailing Wage Guidance.

Whether or not the Department finalizes this rule, it should update the 2009 Guidance, which has governed
prevailing wage determinations for nearly seventeen years and predates the move from the legacy iCert
system to the Foreign Labor Application Gateway. Administrative law requires that regulated parties have
“ascertainable certainty” about the standards applied to them.58 Several current adjudicatory practices fail
that test:
•

Travel and relocation “points.” OFLC appears to raise the assigned wage level based on
domestic travel, international travel, or relocation requirements, but this practice appears nowhere
in the 2009 Guidance and is conveyed only through FAQs and informal communications, often
learned only after an ETA Form 9141 is filed.59 The Department should codify any such factors,
define how frequency, duration, and scope matter, and provide worked examples.

•

Alternative requirements. OFLC now issues two separate prevailing wage determinations when
an employer lists alternative requirements, taking the higher figure without regard to how much of
the role each occupation represents,60 a method found nowhere in the regulations or 2009
Guidance. The Department should account for the actual allocation of duties.

55

See ETA Form 9089, Section I, Attestation No. 1; 20 C.F.R. §§ 656.40, 656.41.
86 FR 3608 (Jan. 14, 2021) (describing a two-step phase-in over eighteen months for most positions and a four-step phasein over three-and-a-half years for workers on track to permanent residence).
57
91 FR at 15478 (proposing to apply the new wage levels to prevailing wage requests pending on the effective date).
58
FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012); General Electric Co. v. EPA, 53 F.3d 1324, 1328-29 (D.C.
Cir. 1995) (requiring “ascertainable certainty” of regulatory requirements).
59
See Permanent Employment Certification (PERM) Online Filing Release Notes (June 1, 2023), Flag.dol.gov.
60
U.S. Dep’t of Labor, OFLC, National Prevailing Wage Center, Round 3: Implementation of the Revised ETA-9141 FAQs
(July 16, 2021).
56

Page 10 of 11

Combination of occupations. Revisions to the ETA Form 9089 now force an emplo'er that
disputes a "combination of occupations" linding into a Request fbr Redetermination. Center
Director Review, and BALCA appeal before it ma,v explain how it salisfies a regr:laton,
exception,6l a needlessly burdensome process for employ'ers and the agency alike.

The end 0f O'kNET Job Zone 1. Effective February' 2026. O*NET merged Job Zones 1 and l
into a new "Job Z,one 1-2."62 The 2009 Guidance. ho*'ever. carves out Job Zone I lbr purposes .1the Specific Vocational Preparation calcr-rlation that drir,es rvage levels.63 and the Department has
not explained how the new "Job Zone 1-2'' is to be used.6a Clear instructions are needed so
employers can predict compliant wages.

XI.

Conclusion.

I sharc the Departnlent's goal of ensuring that no enrploler uses thesc prograprs tg unclercut United States
workers. But that goal is alreadv serr''ed b1 the statute's "higher of'requirement. b),recept lotterl and
selection refbrms. and by the Deparlntcnt's onn enlbrccment tools-and it can b,: adlanced lurthcr
through targeted, data-driven IneasLrres ain-red at anv genuine bad actors. tJpending a s),stent on *hic6
ate
collegc-s and universities. academic rneclical centers. non-profits. public school systems.
'rir
companies. and small businesses have rclied fbr morc than tlro decadcs on the strengtli ol'an outdated
andone-sidedrecord.acircularbenchmarkrrethoclologl.andasnrall-entill analysisthatorerlooks;sr'all
non-profits and understal.es real costs w'ould harm Unitecl States and fbrcign rvorkers alikc and riould
not survive review under the Administrative procedure Act.

I respectftrlly urge the Department to withdraw the Proposed Rule. If the Department proceeds. I r.rrge ir
to correct the Level I and Level IV rrethodologies. preserve and expand the use c,f alternati'c \\age
sur\eys- abandon the cxpcrience-bcnchutarkins ancl natior-ral-uagc alternativcs" r1;,Cg its sr'all-crtirr
analt'sis. and provide a gerruine. trulti-r'ear phased transition *ith protection lur pencling and in-pr.cess
cases. Thank you for your consideratior-r o1-thesc counrcnts.

Rcspcctl ully subrnitted.

KBAMER PARTNERS, LLP
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otsee

o*NET, Job Zones in TI'ansition: A New Four-Level Franreuork Rellecting the Increased Skill Demands ol
occupations (oct. 2025), https://rvrvrv.onetcenter.org'reports'Job Zone Transition.html.
"'See o*NET. Stratili ing occupational Units br Specitic Vocarional preparation (SVp) ( 1999).
https :liwwrv. onetcenter.org/dl fi les,'SV p. pdf.
61pa-9e

8 of the 2009 Guidance.

Pace ll ofll