DPE Letter to U.S. Department of Labor Regarding Proposed H-1B / PERM Prevailing Wage Rule
May 26, 2026
The Honorable Keith Sonderling
Acting Secretary, U.S. Department of Labor
200 Constitution Ave., NW
Washington, DC 20210
Re: Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States (Employment and Training Administration) (DOL Docket No. ETA-2026-0001)
Dear Acting Secretary Sonderling,
On behalf of the 24 national unions in the Department for Professional Employees, AFL-CIO (DPE), I appreciate the opportunity to respond to the U.S. Department of Labor’s (DOL) Notice of Proposed Rulemaking (NPRM) regarding “Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States” (RIN 1205-AC30).
The NPRM is directly relevant to DPE’s affiliate unions, which represent over four million professional, technical, and other highly skilled workers. Members of DPE’s unions include U.S. citizens, permanent residents, H-1B beneficiaries, and workers who aspire to participate in the H-1B program. DPE’s response to the NPRM, as well as its long-time advocacy for fundamental reforms to the H-1B visa program and enhanced worker protections for the PERM program, is informed by the experiences of these union professionals.
DPE believes that the H-1B and permanent employment-based immigration programs play important roles in the economy by attracting skilled talent, including members of our unions, to the United States. However, employers currently use both programs to pay below market wages. In particular, the H-1B program is now a tool for employers to lower labor costs, despite Congress’s intent to permit U.S. employers to hire people from abroad when they cannot find qualified, available U.S. professionals.
The current prevailing wage levels allow employers to replace U.S. professionals with H-1B workers paid below-market wages in employment arrangements where the employer controls their ability to live and work in the United States. Most H-1B workers earn wages below the 50th percentile for their occupation and area. H-1B workers hired into Level I certified jobs are paid as low as the 17th percentile, and Level II certified jobs are paid as low as the 34th percentile. Outsourcing and offshoring companies have seized the wage arbitrage opportunity created by the current, low prevailing wage levels and are now the top users of the H-1B program, responsible for an outsized share of approved petitions each year.
H-1B Employers Should Be Required To Pay At Least The Median Prevailing Wage
DPE believes that the H-1B minimum wage should be increased to no less than the median wage for the occupation and area. The outsourcing and offshoring companies that dominate the H-1B program have built their business models around the ability to legally pay H-1B workers less than the median wage. For instance, in internal documents made public as part of a federal whistleblower lawsuit, outsourcing firm HCL Technologies emphasized its plan to lower labor costs by intentionally paying H-1B workers less than U.S. workers. The amount of underpayment was “estimated … to likely exceed $95 million annually.” However, all types of companies, including big-name tech firms, take advantage of the H-1B visa program’s current low wage levels.
DOL proposes increasing the prevailing wage floors for Wage Level I from the 17th percentile to the 34th percentile, for Wage Level II from the 34th to the 52nd, for Wage Level III from the 50th to the 70th, and for Wage Level IV from the 67th to the 88th, relying upon wage data provided by the Occupational Employment and Wage Statistics (OEWS) survey. Employers will still be able to pay below median wages in certain circumstances; however, the proposed increased wage floors should make it more difficult financially for the H-1B and PERM programs to be used as tools to cut labor costs.
DOL Should Update Prevailing Wage Level Guidance and Improve Enforcement
The prevailing wage standard is set by three factors: occupation, location, and skill level. Because skill level is determined by the job characteristics, employers have significant influence over the certified prevailing wage level. Data suggest that employers use their influence to misclassify jobs in order to pay workers at lower prevailing wage levels. In fiscal year 2019, for instance, more than 60% of all H-1B workers held a master’s, professional, or doctorate degree. Yet, most H-1B jobs were certified at the Level 1 (“Entry Level,” 17th percentile) or Level 2 (“Qualified,” 34th percentile) wage level.
DOL should therefore also update its guidance on the four prevailing wage levels in order to address the issue of employers crafting job descriptions with the intention of qualifying for the lowest possible wage levels. The updated guidance should provide clear, thoughtful, bright lines delineating what jobs will qualify for each respective wage level, and the intention should be to encourage employers to pay at or above the median prevailing wage. DOL should also regularly ensure that companies are complying with wage levels appropriate for the actual work being performed to the extent possible under current law. Victims and witnesses of misclassification must receive immigration relief to prevent retaliation and intimidation.
DOL Should Provide Additional Worker Protections for the PERM Program
DOL should also ensure that people hired through the PERM program can feel confident that they will not face employer coercion or workplace abuse if they come to work in the United States. In particular, employers hiring for Schedule A occupations, who benefit from an exception to the normally-required labor market test, must be held to a high-road standard.
The experiences of internationally recruited nurses showcase the need for stronger worker protections in the PERM program. Too many of the hundreds of thousands of nurses hired through Schedule A over the years were recruited with abusive contract provisions. To be hired with green cards, these nurses are forced to sign multiyear, one-sided contracts that use the threat of financial ruin to bind them to a single employer. Under these contracts, nurses who want to change jobs must pay high “breach” fees. Employers then use the nurses’ lack of mobility to artificially suppress wages, since the nurses were hired at the current low prevailing wage levels and cannot leave for better paying opportunities.
The coercive practice of “breach fees” and non-compete clauses in employment contracts, and the charging of recruitment fees and associated costs to workers, must be prohibited. DOL should require that employers provide the recruitment contract to any person offered permanent employment before departure to the United States. In addition, workers hired for permanent employment should, prior to departure, receive written information in their native languages on their rights under U.S. workplace laws and how to access these rights.
More Needed to Fully Reform H-1B and Other Temporary Work Visa Programs
DPE continues to urge the Administration to go beyond the present NPRM to help improve the H-1B and other temporary work visa programs for professionals. Funding and staffing should be returned to labor agencies. Outsourced work arrangements where H-1B workers are assigned to third-party job sites should be prohibited. Employers who violate labor and employment laws should be barred from the H-1B and other temporary work visa programs. Protections, including work authorization, should be provided to noncitizen workers who blow the whistle on employers’ violations of labor and employment law. Foreign labor recruiters should be regulated and prohibited from charging fees to workers.
Administrative actions, including increasing the prevailing wage floors, improving the visa allocation process and implementing DPE’s other recommendations, are important steps to fixing the broken H-1B visa program. Ultimately, however, Congressional action is necessary to achieve lasting reforms. DPE therefore urges the Administration to support the H-1B and L-1 Visa Reform Act, bipartisan legislation that would go a long way toward reforming both visa programs by lifting wages, promoting worker empowerment, and ensuring that employees can exercise their workplace rights free of retaliation or coercion. In addition, Congress should allow H-1B and L-1 nonimmigrants to self-petition for permanent status and provide them the freedom to change jobs while waiting for available immigrant visas.
DPE also strongly urges support for the Keep STEM Talent Act, bipartisan legislation that enables talented graduates from U.S. colleges and universities to continue contributing to the American economy while ensuring that they can earn a fair return on their work. Under this legislation, international graduates who earn advanced STEM degrees from American universities would be exempt from the annual green card caps when their employers receive approved labor certifications and pay them above the local median wage level for their specific occupation. The Keep STEM Talent Act would offer in-demand graduates a high-road alternative to the H-1B and other precarious, temporary work visas, while enhancing America’s global leadership.
Conclusion
Union professionals’ experiences demonstrate that the PERM and H-1B programs’ prevailing wage levels must be increased, which is why DPE supports a minimum wage floor of no less than the median wage for an occupation and area. DOL’s proposed increases to the four wage levels will still allow employers to pay below median wages for Level I jobs, but the proposed adjustments will improve the H-1B and PERM programs for all workers. DPE also continues to insist that the Administration do more to protect labor standards for all professionals.
If you have any questions, please contact me or DPE Assistant to the President/Legislative Director, Michael Wasser at mwasser@dpeaflcio.org.
Sincerely,
Jennifer Dorning, President