Why It Matters
The federal methodology for setting minimum wages that employers must pay temporary foreign workers in specialty occupations is the subject of a new Congressional Research Service (CRS) report, which finds that a Trump administration proposal would shift those wage floors substantially upward across all skill levels.
The administration proposed regulation in March that would raise the Level I prevailing wage from approximately the 17th percentile of wages for each occupation and geographic area to the 34th percentile, and would raise Level IV from approximately the 67th percentile to the 88th percentile. Levels II and III would also rise, as they are calculated as fixed intervals between Levels I and IV.
Higher wage requirements could reduce the possibility that employers use visa workers to obtain labor below prevailing market rates, but could also increase employer costs and constrain access to specialized foreign labor, particularly in lower-wage regions and occupations.
A separate issue the report highlights is the $60,000 annual wage threshold, established in the American Competitiveness and Workforce Improvement Act of 1998, that exempts certain H-1B workers from additional recruitment and non-displacement attestation requirements and has not been adjusted since it was set.
The Big Picture
The H-1B, H-1B1, and E-3 visa programs cover foreign nationals employed in specialty occupations, defined as roles requiring specialized knowledge and generally at least a bachelor's degree; H-1B1 is reserved for nationals of Chile and Singapore, and E-3 for Australian nationals, with both sharing the same wage framework as H-1B.
Under the Immigration and Nationality Act, employers must offer the greater of their actual wage for similarly qualified employees or the prevailing wage for the occupation and area, attesting to compliance by filing Labor Condition Applications with the Department of Labor's Office of Foreign Labor Certification.
The 2026 proposal revives an approach the first Trump administration attempted. A January 2021 final rule would have raised Level I wages to approximately the 45th percentile and Level IV wages to approximately the 95th percentile, but the U.S. Chamber of Commerce sued to block it, and in June 2021 the Department of Labor requested voluntary remand, citing substantive and procedural concerns. The rule was withdrawn in December 2021, and the 2026 proposal targets lower percentiles than that rule did.
Several bills in the 119th Congress would set wage requirements for H-1B workers, including the H-1B and L-1 Visa Reform Act (S. 2928), which would require employers to pay H-1B workers at least the median wage for all workers in the same occupation and geographic area, though the report says versions of that act have been introduced in nearly every Congress since 2009 with bipartisan support, and other bills would set annual wage floors of $100,000, $150,000, or $200,000.
The Bottom Line
During fiscal years 2022 through 2024, approximately 13 percent of employers indicated on their labor condition application filings that they were H-1B dependent or willful violators, according to CRS, though most planned to hire only exempt workers and fewer than 1 percent indicated they were required to comply with the additional attestation requirements.
The Congressional Research Service report notes that the 2021 rule was challenged by the U.S. Chamber of Commerce and withdrawn, and that several wage-floor bills in the 119th Congress, if enacted, could complement, replace, or supersede regulatory changes.
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