United States: DOL Final Rule on Prevailing Wages Now Under OMB Review
November 9, 2026
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At a glance
- A Department of Labor final regulation that would increase prevailing wages for the H-1B, PERM, and certain other foreign worker programs has been submitted to the Office of Management and Budget (OMB) for review – initiating the final stage in the federal rulemaking process.
- Release of an advance copy of the final rule in the Federal Register is expected in the coming days or weeks.
- The final rule will specify an implementation date, which will be 30 or 60 days after publication in the Federal Register.
The issue
The federal Office of Management and Budget (OMB) is now reviewing a Department of Labor (DOL) final rule that would increase prevailing wage minimums for certain foreign workers under the Department of Labor’s four-level prevailing wage system. The increased minimum wages would affect employers sponsoring foreign workers in the H-1B, H-1B1, and E-3 nonimmigrant programs and in the PERM labor certification program that initiates the permanent resident (green card) process for many foreign nationals.
The DOL issued a proposed version of the prevailing wage rule in late March 2026 and accepted public comments for 60 days. DOL has now finalized the rule and submitted it for the final stage of federal review. The contents of the final rule will remain confidential until it is released for publication in the Federal Register with an implementation date. The implementation date is expected to be 30 or 60 days after publication.
A closer look
The Department of Labor uses Occupational Employment and Wage Statistics (OEWS) data from the Bureau of Labor Statistics (BLS) to determine prevailing wages in a wide array of occupations. The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the geographic area of intended employment. The OEWS prevailing wage is subdivided into four tiers or wage levels, representing the range of skills from entry level to experienced.
If the DOL rule is finalized as proposed in March 2026, OEWS prevailing wage minimums will increase significantly for foreign workers at all four levels of skill and experience. For example, under current rules, the Skill Level I (entry level) wage minimum is currently set at the 17th percentile of the average wage for the occupation. The DOL proposal sought to increase the entry-level minimum to the 34th percentile, which is currently the minimum salary for Skill Level II.
The following chart illustrates how the four OEWS wage levels would change under the DOL proposal released in March 2026:
DOL Prevailing Wage Levels: Current and New
|
Skill Level |
Current Percentiles |
Proposed Rule Percentiles |
|
Level I |
17 |
34 |
|
Level II |
34 |
52 |
|
Level III |
50 |
70 |
|
Level IV |
67 |
88 |
The proposed revised percentiles are nearly identical to the percentiles proposed in the final wage rule issued at the end of the first Trump Administration, which was challenged in court and ultimately never took effect.
What’s next for the final regulation
Once the rule clears OMB review, it will be published in the Federal Register with an implementation date. An implementation date of 30 or 60 days after publication is anticipated, meaning the rule could be in effect for the next H-1B cap season, which starts in late winter/early spring 2027. Court challenges to the final rule are possible.
Fragomen is closely tracking the progress of the regulation. When the final rule is published in the Federal Register, feedback from the business community will be crucial to inform the government of the rule’s impact on the position of the United States in the competition for global talent. If your organization is interested in submitting a comment, please contact your Fragomen professional or the firm’s Government Strategies and Compliance Group.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
