Brian D. Pasternak,
Administrator, Office of Foreign Labor Certification
Employment and Training Administration
Department of Labor
Room N-5311
200 Constitution Avenue NW
Washington, DC 20210

RE: Department of Labor, Employment and Training Administration, Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States, Notice of Proposed Rulemaking, DOL Docket No. ETA-2026-0001, RIN 1205-AC30 (March 27, 2026)

Dear Brian Pasternak:

The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank established in 1986 to include the needs of low- and middle-income workers in economic policy discussions. EPI conducts research and analysis on the economic status of working America, proposes public policies that protect and improve the economic conditions of low- and middle-income workers—regardless of immigration status—and assesses policies with respect to how well they further those goals. EPI submits these comments on the Department of Labor’s (DOL) Notice of Proposed Rulemaking (NPRM) regarding the updated four-tiered wage structure for H-1B, H-1B1, and E-3 nonimmigrant workers and DOL permanent labor certifications for employment-based permanent immigrant visas (i.e. green cards) in the second and third employment-based preference categories (EB-2 and EB-3). EPI has researched, written, and commented extensively on the U.S. system for labor migration, including in particular, the H-1B program and other temporary work visa programs and green cards. EPI has published extensively on H-1B wage levels and employer usage and abuse of H-1B and other visa programs.1

EPI generally supports the main substance of the NPRM and believes it is an improvement as compared to the status quo for the current four-tiered wage structure for H-1B, and will also improve H-1B1 and E-3 nonimmigrant visas, and permanent labor certifications in EB-2 and EB-3, because the NPRM will make incremental progress towards ensuring that the wages of U.S. workers are safeguarded and that the Labor Condition Application (LCA) and PERM programs are not hijacked by employers as a loophole to underpay migrant workers according to U.S. wage standards. The proposal will also help disincentivize firms from using H-1B visas as a primary tool to outsource professional jobs and send them overseas.

However, as we will detail in this comment, we believe DOL should go beyond what the NPRM proposes by setting the wage floor—i.e. the Level I wage—at the 50^th percentile so that no H-1B, H-1B1, E-3, EB-2, or EB-3 jobs are ever certified at a wage that is below the local median wage for the occupation. If DOL implements such a rule in the final version of the regulation, the rule would address a major critique EPI has long held about the program, and which Members of Congress from both major parties have attempted to address through repeatedly proposed legislation that was first introduced nearly two decades ago.

It must also be noted at the outset of these comments that recent actions taken by DOL with respect to wages for migrant workers in temporary work visa programs have been inconsistent and confusing. While DOL is considering action proposed in this NPRM that will raise wage rates closer to true market rates for migrant workers in the H-1B, H-1B1, and E-3 visa programs, as well as those with labor certifications for EB-2 and EB-3 green cards, it is important to note that in October of 2025, DOL issued a new wage rule for the H-2A program that will cut wages dramatically for the migrant farmworkers in that program and unfairly charge them for lodging2—which, as EPI has estimated—will lead to a pay cut of roughly $2 billion for H-2A farmworkers and $3 billion for U.S. farmworkers per year.3 DOL should issue regulations that lead to improved labor standards and fair wages for all work visa programs, and not treat workers differently based on their education levels, occupations, and nationalities. All temporary migrant workers deserve to be paid fairly for their work, and no work visa programs should operate as loopholes that allow employers to legally underpay migrant workers.

The NPRM is an improvement on the status quo but DOL should amend the proposal to better protect workers

In general, the NPRM improves upon the current wage structure but should be further enhanced to better protect workers and align the program with congressional intent and the goals of the H-1B statute. The principal change made by the NPRM is to update the four prevailing wage levels required in the H-1B, H-1B1, and E-3 visa programs—temporary work visa programs for college-educated migrant workers—setting levels at higher percentiles in the Occupational Employment and Wage Statistics (OEWS) survey distribution of wages, in order to more adequately reflect market wage rates in the U.S. labor market. The NPRM also applies the new wage rates/percentiles to the permanent labor certification requirements for employment-based (EB) green cards in the EB-2 and EB-3 preference categories (sometimes referred to as the PERM process).4

The current and newly proposed wage level percentiles are as follows:

Table 1

As we have detailed in published research,5 the two lowest wage levels in the current wage computation method are below the local median wage according to the occupation and local area based on DOL wage survey data in the OEWS, allowing employers to undercut U.S. wage standards. The NPRM sets the lowest wage level at the 34^th percentile, previously the Level II wage, thereby continuing to permit employers to pay H-1B workers at below-market wage rates—but not at the absurdly low levels allowed by the current Level I wage at the 17^th percentile.

DOL’s faulty prevailing wage computation has cost foreign-born workers at least $6.56 billion annually (see NPRM Exhibit 1). Even that is likely to be a serious underestimate for two reasons. First, it does not account for the losses suffered by U.S. workers and students who have had their wages, job opportunities, and career development suppressed and undermined as a result of the current wage methodology. Second, it does not estimate the costs incurred due to foreign-born workers’ weakened bargaining power vis-à-vis their employment through nonimmigrant visa programs. Employers exert much more control over visa workers than U.S. workers and permanent residents. Foreign-born workers on nonimmigrant visas have less opportunity to, and are far less likely to, switch jobs. Switching jobs, or the threat of switching jobs, is fundamental to any worker’s ability to demand higher wages and better working conditions. Professor George Borjas estimates that, in fiscal year (FY) 2024, visa holders had an annual separation rate of 9.4%, less than half of comparable U.S. workers.6 Workers also face dire circumstances should they be terminated. They must find a new job within 60 days or else leave the United States. All these conditions place foreign-born workers in the H-1B, H-1B1, and E-3 visa programs in a much weaker position than similarly situated U.S. counterparts when bargaining for wages and working conditions. Simply put, foreign-born visa workers have fewer employment rights than U.S. citizens and permanent residents, and employers rationally take advantage of their relatively weak position when setting employment terms. Further, the agency has never enforced the Labor Condition Application’s (LCA) Working Conditions attestation, where employers promise to “not adversely affect the working conditions of workers similarly employed,” so employers disregard it.

In addition, the ability of H-1B workers to become lawful permanent residents and remain in the United States is entirely up to the whims of their employers. Even after working for an employer for six years in H-1B status, the employer has the power to decide if an H-1B worker can remain in the country—in many cases after an H-1B worker has established firm roots in the United States. That power keeps H-1B workers from complaining and asserting their employment rights. That leaves H-1B workers in a difficult position where they might decide, rationally, to abandon any demands for higher wages and better working conditions in exchange for the possibility of being sponsored for lawful permanent residence.

Prevailing wages must be raised sufficiently to compensate for this government-created labor market distortion, to protect both foreign-born workers with nonimmigrant visas and U.S. workers who already reside in the United States. 

DOL’s proposal to increase the wage-level percentiles is the best approach. It is straightforward and understandable to implement. The effects are easily modeled. Employers can respond to it predictably and effectively. It will improve the quality and skill mix of the pool of workers who are issued visas, pay those workers fairer salaries, and have fewer adverse impacts on the domestic workforce and labor supply. Recent results reported by United States Citizenship and Immigration Services (USCIS), from the fiscal year (FY) 2027 H-1B lottery, the first to use the new wage-level weighting process, show that a large majority of H-1B registrations selected met at least the 34th percentile threshold, 82%, while also increasing the share of F-1 advanced degree graduates selected from 57% to 71.5%.7 The latter demonstrates that concerns about this proposal shutting off the foreign student pipeline are overblown and misguided.

However, as noted above, the increases don’t go far enough. We believe that the Level I wage should be set no lower than the median (50th percentile) to effectively adjust for the non-compensated effects of limited job-switching, an absent or ineffective labor market test, weaker bargaining position, and non-enforcement of the actual wage requirement. Recent college graduates, especially those earning degrees in computer science and computer engineering, are facing the highest unemployment rates amongst all majors according to analysis by the New York Federal Reserve Bank, and the worst job market in recent memory according to dozens of media accounts.89 Most analysts and executives predict that artificial intelligence (AI) will only make that labor market segment even worse. Major firms have laid off thousands of workers, citing AI the reason they need fewer workers. Many of those same firms employ thousands of H-1B workers. AI is predicted to reduce labor demand especially of recent graduates, the very U.S. workers competing for Level I jobs. The rules should ensure that workers assigned at Level I wages have truly special skills and will not undercut opportunities for recent university graduates.

Analysis of the NPRM: “Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States”

1. Raising wages for H-1B workers and permanent labor certifications will benefit migrant workers and protect wage standards for U.S. workers

For years, H-1B employers have been allowed to pay their H-1B workers at wage rates that do not reflect local market rates, by having an option to pay them at the two lowest permitted wage levels. Our 2020 report discusses the available data, the mechanics of the current rule, and why it is important to modify the H-1B wage levels to adequately reflect market wages and ensure that H-1B workers are paid fairly, and to preserve U.S. wage standards.10 In the report, we recommend that DOL prohibit any H-1B job from being certified at a wage that is below the local median for the occupation and region. In that respect, by proposing to set the lowest wage level (Level I) at the 34^th percentile, DOL’s NPRM fails to do enough to protect wage standards in H-1B jobs. In the report we also recommend that DOL prohibit downward pressure on wages at the national level by requiring that every H-1B job be certified at a wage that is no lower than the national median wage for the occupation.

Many commentators on this NPRM, especially from the business community, including universities, are likely to claim that raising wages for migrant workers and safeguarding U.S. wage standards will harm the U.S. economy. When the misleading rhetoric is stripped away, the employers who oppose higher wage percentiles for H-1B, H-1B1, and E-3 visas, and EB-2 and EB-3 green cards, are simply claiming, in essence, that employers will only hire workers in the LCA and PERM programs if they are underpaid relative to similarly situated U.S. workers, and portray higher wages as an obstacle to migration or to the hiring of adequate talent that will prevent them from being successful and innovating.

Accepting this argument leads to a race to the bottom in terms of labor standards and excuses the co-optation of the immigration system in order to pad corporate profits. And such a line of argumentation is not supported by the available evidence. In fact, many advocates on all sides of the current H-1B debate now agree that the current H-1B wage rules are undercutting U.S. wage standards and should be updated. Even previous staunch defenders of the status quo, such as those representing or funded by the tech industry, as well as representatives of major employer associations, now admit that U.S. wages and U.S. workers are being undercut via the current prevailing wage rule.11

Adequate labor standards are never a barrier to migration or economic success—instead, they are a prerequisite to fair treatment for the migrant workers who are recruited by employers into the U.S. labor market and similarly situated U.S. workers.

Under the current rule, the wages of H-1B workers are being kept artificially low. The higher wage levels in DOL’s NPRM are more reasonable and closer to reflecting market wages in particular occupations and specific geographic regions. In other words, DOL’s proposal will push wage levels toward market wages, meaning it will increase labor market efficiency. It will also improve the quality and skill mix of the pool of foreign-born workers who are hired, increasing the productivity and innovation spillovers that skilled immigration promises.

2. DOL should raise the wage percentiles so that Level I is set no lower than the 50^th percentile of total wages surveyed in an occupation and region and prohibit any LCA or PERM approval for a wage that is lower than the national average for the occupation

The purpose of the H-1B and related programs is to “help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce.”12 Specialized skills should command high wages; such skills are typically a function of inherent capability, education level, and experience. It would be reasonable to expect that these workers should receive wages higher than the local median wage. One would therefore expect most H-1B positions to be assigned as Level IV (the only current wage level above the median), but as DOL and USCIS data show, H-1B employers as a whole assign only a very small minority of H-1B positions as Level IV, usually roughly 15% or less in recent fiscal years, while as DOL notes in the NPRM, 63% of H-1B positions were assigned at Levels I and II. For all LCA programs, DOL notes in the NPRM that in FY 2024, 16% of all LCA positions were certified at Level IV. At the USCIS petition level, Level IV wages are even less common: data disclosed by USCIS shows that in 2019 and 2020, only 4% of approved petitions for new employment under the regular cap were assigned at Level IV and only 2% of approved new H-1B petitions under the advanced degree exemption cap were assigned at Level IV.13 We also know from more recent data from DHS that the five-year average of H-1B registrations at Level IV was just 5% over the FY 2020 to 2024 period.14

The data presented in our reports over the past decade and a half and more recently, the data reported by USCIS on the distribution of H-1B petitions by wage level, all point to the obvious fact that nearly all H-1B employers, but especially the largest employers, use the H-1B program either to hire relatively lower-wage workers (relative to the wages paid to other workers in their occupation) who possess ordinary skills or to hire skilled workers and pay them less than the true market value of their work. Either possibility raises important policy questions about the use and allocation of H-1B visas.

By setting two of the H-1B prevailing wage levels so low relative to the median and not requiring that firms pay at least market wages to H-1B workers, DOL has incentivized firms to earn extraordinary profits by legally hiring much-lower-paid H-1B workers instead of workers earning at least the local median wage. The fact that firms earn those profits through poorly crafted wage rules and by underpaying H-1B workers—instead of by offering a better or more innovative product or service—means DOL has, in effect, made wage arbitrage a feature of the H-1B program. And as the wage-level data we have reported on and cited here clearly shows, nearly all H-1B employers are exploiting these H-1B wage rules in order to pay below-median wages.15 We believe the evidence is clear that these firms are not using the H-1B program sparingly to hire truly specialized workers, nor are they using it only when U.S. workers are unavailable. Given the business models and occupations, it is likely that the H-1B1 and E-3 programs are being abused similarly.

So how should DOL set a wage rule that guards against this and complies with the statutory requirement to prevent adverse effects on wages and working conditions?

The existing statutory language that sets out the H-1B prevailing wage requires four H-1B wage levels, but it does not prescribe specific percentiles, and no law requires DOL to set any of these prevailing wage levels below the local median wage. To ensure that H-1B workers possess specialized skills and are fairly paid, and to protect local wage standards and eliminate wage arbitrage as a feature of the H-1B program, DOL should issue a final rule that sets the lowest (Level I) wage for the LCA programs and EB-2 and EB-3 green cards at the 50th percentile for the occupation and local area, at least, and require that wage offers to workers in the LCA and EB-2 and EB-3 programs never be lower than the national median wage for the occupation, in order to prevent downward pressure on wages nationwide.

Requiring and enforcing above-median wages for H-1B and other LCA and PERM program workers would disincentivize the hiring of workers with nonimmigrant visas and green cards as a money-saving exercise, ensuring that companies will use the program as intended—i.e., to bring in workers who have special skills—instead of using them as a way to hire underpaid indentured workers for jobs that require at least a college degree.

3. DOL should set the updated wage percentiles at the 50^th, 62^nd, 75^th, and 90^th percentiles according to the total surveyed wages for the occupation and local area in the OEWS

As noted and discussed above, the lowest wage level, Level I, should be set no lower than at the 50^th percentile. Instead of the proposed four wage levels in the NPRM, DOL should set the lowest wage level, Level I, at the median wage (at the 50^th percentile), Level II at the 62^nd percentile, Level III at the 75^th percentile, and Level IV at the 90^th percentile—according to the overall distribution of OEWS wages for each occupation and region. (See table below.)

Table 2

These levels would ensure that no LCA or EB-2 or EB-3 positions are certified at a wage that is below the overall local median wage for an occupation, which in turn will prevent downward pressure on U.S. wage rates in such occupations. An additional benefit of using the 50^th, 62^nd, 75^th, and 90^th percentiles, as DOL points out, is “that they are close to dividing the upper half of the distribution equally.”16

4. DOL’s experience benchmarking proposal is inferior to the NPRM’s core proposal on wage levels and should not be implemented

The NPRM requests comments on ‘experience benchmarking’ as an alternative computational method to the core proposal of Level I at the 34^th percentile, Level II at the 52^nd, Level III at the 70^th, and Level IV at the 88^th percentile, based on the overall OEWS wages by occupation and region. We believe that this experience benchmarking alternative is significantly inferior to the core proposal and urge DOL to reject it for four main reasons. First, the methodological description is insufficient to evaluate, with just two pages of text. This is especially troublesome since it is an entirely novel method of setting prevailing wages that has never been rigorously tested or examined. It will impact literally millions of workers and hundreds of thousands of employers. To our knowledge, Mincer equations have never been used to this large an extent for setting wages in any government program. Second, the data necessary to calculate prevailing wages do not exist; they must be synthesized through estimation procedures after marrying two distinct surveys that were never designed for these purposes. Are the sample sizes sufficient? There’s no exploration of these potential flaws in the NPRM. Third, the method biases against women. The method does not directly measure experience; instead, it estimates experience by the age of the candidate. Women are more likely than men to have gaps in their labor force participation. The agency does not provide a method for adjusting the calculations based on gender. Fourth, this method would surely fuel age discrimination by allowing firms to legally pay younger H-1B workers less than U.S. workers doing the same job. Professor Norman Matloff, one of the leading scholars of the H-1B program, has repeatedly expressed concerns that firms prefer to hire H-1B workers because they are younger, and therefore lower-paid, than equivalent Americans.17 The government would be endorsing such behavior by adopting experience benchmarking.

More broadly, adopting benchmarking to set prevailing wages rests on the assumption that labor markets are highly segregated by age and educational attainment. Is it true that a 28-year-old does not compete with a 35-year-old? Is it true that someone with a master’s degree does not compete with someone with a bachelor’s degree? The DOL provides no evidence to test this hypothesis with a single occupation or example, let alone whether it would hold across the roughly 400 occupations eligible for visa programs covered by this NPRM.

The example provided in the NPRM, of an accountant working in Dayton, Ohio, illustrates the difficulty for anyone to assess the accuracy of the procedure.

If ACS data and Mincer wage equation estimated that U.S. accountants with 10 years of experience and a master’s degree typically earn 20 percent more than the median accountant nationwide, the Experienced Benchmarked ratio for that education-experience combination in accounting would be expressed as a wage premia factor of 1.2. Then, to compute the Level I prevailing wage for an employer seeking visa labor certification to employ an alien worker as an accountant in Dayton, Ohio, with 10 years of experience and a master’s degree, the Department would take the OEWS 50th percentile for accountants in the Dayton MSA (currently $78,710) and multiply it by 1.2, yielding an experience-benchmarked Level I prevailing wage of $94,452. The Level II prevailing wage would apply the same 1.2 ratio to the OEWS 62nd percentile; Level III to the 75th percentile; and Level IV to the 90th percentile.18

This hypothetical example presents several shortcomings.

First, we encounter problems with identifying the data. The NPRM reports the OEWS 50^th percentile wage in Dayton MSA of $78,710. We are unable to validate this wage using the OFLC Wage Search page.19 The OEWS 50^th percentile wage (current Level III) for the occupation is shown below, with the results listed for three different years of data available in the database:

Occupations: SOC 13-2011.00 – Accountants and Auditors
Location: Dayton OH BLS Areas Montgomery County
Series: All Industries

7/2023-6/2024 Level III Wage: $77,251.00
7/2024-6/2025 Level III Wage: $82,576.00
7/2025-6/2026 Level III Wage: $86,403.00

Further, based on the absence of data and sparse description of the methodology, there’s no way for us, or anyone else, to test or examine the method used to calculate the wage premia/discount using the Mincer equations. The “hypothetical” example claims a premia of 20%, but it is unclear whether this result comes from real calculation or if it’s a fabrication created to illustrate a point. If it is the latter, that raises serious questions about the agency’s ability to implement experience benchmarking across hundreds of occupations, thousands of locations, four skill levels, and a half-dozen educational levels.

More importantly, is the example, and its wage outcomes, representative of the universe of covered workers and the U.S. workers they compete with? The evidence shows that this hypothetical example is neither typical of H-1B workers nor their U.S. counterparts. The description of experience benchmarking does not investigate its implications, but such testing is fundamental to validating the method across occupations, locations, and skill levels. The hypothetical worker has 10 years of experience, which, if they had no gaps in labor force participation, would put them at 34 years old. A 34-year-old worker is older than most new H-1B workers approved for initial employment, ranking near the 68^th percentile by age.20 We also know that this worker is not typical of U.S. accountants. Most practicing accountants hold no more than a bachelor’s degree, 59%, and are older—with a median age of 45—than this candidate.21 The example raises many more questions than it answers.

The median age of all H-1B workers approved for initial employment is approximately 31, whereas the median age of an American worker in an H-1B eligible occupation is approximately 40, even in STEM occupations.22 H-1B workers are generally significantly younger than the typical U.S. worker with whom they compete. Experience benchmarking would favor H-1B workers by offering them a significant wage discount, based on the Mincer method, over the U.S. workers with whom they compete. The upshot is that experience benchmarking would surely fuel age discrimination in these labor markets.

It is likely that experience benchmarking would yield substantial wage discounts (premia ratios <1.0) for H-1B workers, compared with the NPRM’s core approach. But we simply do not know because DOL has not compared the wage outcomes between experience benchmarking and raising the wage level percentiles. DOL has not published experience benchmarking wage tables for every occupation, geography, skill level, experience, and education.

One think tank, the Institute for Progress (IFP), a supporter of the experience benchmarking alternative, attempted to simulate the method using FY 2024 approved petitions and found that experience benchmarking wages for most H-1B workers are substantially lower than the NPRM’s core proposal. Contrary to IFP, we believe experience benchmarking should be rejected, in part for that reason. See its report, specifically the scatterplot chart “Blind Benchmarking misses underpaid H-1B workers” on page 20, where the number of red dots (i.e., experience benchmarking yields a lower prevailing wage than NPRM core proposal) far outnumbers the green dots (i.e., experience benchmarking yields a higher prevailing wage than NPRM core proposal).23 Even these analysts admit they don’t know whether their calculations are consistent with DOL’s sparse description of experience benchmarking. If this think tank’s analysis is roughly correct or on the right track, then experience benchmarking will yield much lower prevailing wages than the core NPRM proposal. If this is true, then the experience benchmarking method undermines the goals of this rulemaking.

In its justification for considering experience benchmarking, the NPRM states that “the methodology employed under the current rule may allow positions to be classified at wage levels that are less comparable to the actual education and experience of the alien worker.” Experience benchmarking, on the other hand, would “address this limitation by comparing the sponsored alien worker’s wage to the wages earned by U.S. workers with comparable education and experience…”24

But elsewhere, the NPRM undermines the case for experience benchmarking by noting that educational attainment is often a poor determinant of wages:

an examination of the top end of the wage distribution within the H–1B program shows that, for H–1B nonimmigrants with graduate and bachelor’s degrees, the association between education and income level begins to break down to some extent. An analysis of the highest earners within the H–1B program reveals that H–1B workers—particularly those with bachelor’s and graduate degrees—can be among the most skilled and capable in their fields. Interestingly, at this top end of the wage distribution, the typical link between education level and income begins to weaken. Among the most highly compensated H–1B workers, the higher the income level, the more likely the alien worker only has a bachelor’s degree.25 (Emphasis added.)

While skill-level misclassification is a major problem, experience benchmarking is the wrong solution because it creates new, unnecessary loopholes. Instead, as we describe below, we recommend that you require employers document their Prevailing Wage Determination (PWD) aligned with the National Prevailing Wage Center (NPWC) guidance and provide it for inspection.

The NPRM’s core proposal—the 34^th, 52^nd, 70^th, and 88^th percentiles based on the overall OEWS wages by occupation and region—coupled with skill classification oversight and accountability, better achieves the program goals than the experience benchmarking proposal discussed in the NPRM.

5. DOL should calculate an additional amount of compensation based on available data on the cost of benefits for workers in private industry and add a reasonable amount to the required prevailing wage

While we believe utilizing the OEWS data set and wage percentiles within the distribution is reasonable and preferable to other data sources and methods, the OEWS falls very short in terms of providing a holistic and realistic picture of what U.S. workers earn in H-1B occupations, as well as those in other LCA programs and PERM programs, by virtue of not including fringe benefits. We urge that DOL also calculate an additional amount of compensation based on available data on the cost of benefits for workers in private industry. If employers do not have to provide fringe benefits to the college-educated migrant workers they recruit or reasonable compensation that accounts for those fringe benefits, that will result in employers underpaying or undercompensating workers with visas vis-à-vis their U.S. worker counterparts, thereby causing adverse effects on workers in occupations covered by H-1B and the other LCA programs. The fissuring of the U.S. workforce has been abetted in part by employers practicing benefits’ arbitrage—in other words, employers seeking a workforce they do not need to provide benefits for—the H-1B, H-1B1, E-3, EB-2, and EB-3 program should not facilitate it.

Davis Bacon and Service Contract Act wage determinations—which are both valid wage sources for determining H-1B wage rates under current H-1B rules—include an additional hourly monetary value that is owed to the worker in “fringe benefits.” Under both Acts, the employer must pay the fringe benefits either in the form of a permissible fringe benefit listed by the applicable Act, or any combination of benefits thereof, or with an equivalent cash payment.26 The lack of any fringe benefits in OEWS prevailing wage determinations27 constitutes a severe deficiency in the OEWS wage data that conflicts with and undermines the statutory requirement that the H-1B prevailing wage will not adversely affect the wages and working conditions of similarly employed U.S. workers. 

Reliance on the OEWS to determine prevailing wages—without an adjustment for fringe benefits—is not an adequate method to set prevailing wages for LCA and PERM programs. If the prevailing wages and benefits for a particular occupation in a particular Metropolitan Statistical Area (MSA) are, for example, $30 per hour plus $10 per hour in leave, pension, and health benefit costs, but DOL determines the prevailing wage to be simply $30, U.S. workers will be adversely impacted. Employers will be encouraged to hire H-1B workers instead of U.S. workers, saving themselves $10 in benefit costs per hour and putting downward pressure on the locally prevailing compensation. Hiring H-1B workers at $30 an hour for example, with no benefits, would allow employers to underprice labor by 30%—which is the average benefit share of total compensation costs for private industry workers28—and it could encourage employers to replace U.S. workers with H-1B workers, or hire H-1B workers instead of U.S. workers, since employers are not required to recruit and hire U.S. workers before hiring H-1B workers. H-1B workers and those employed through other LCA programs cannot be expected to complain about this or have the bargaining power to negotiate adequate fringe benefits, because their employers control and have near-total power over their immigration status, and some workers will be also willing to accept the lower compensation, because it will likely be far more than they could earn in their country of origin.

BLS already collects the necessary data to determine the appropriate amount of fringe benefits that should be required as a supplement to the OEWS wages used to set a prevailing wage. The Employer Costs for Employee Compensation (ECEC) report from the Bureau of Labor Statistics (BLS) “provides the average employer cost for wages and salaries as well as benefits per employee hour worked” for workers in the civilian economy.29 The ECEC reports the total average wages and benefits paid by employers and lists these data as they correspond to broad occupational employment categories. These data are also differentiated according to the average amount paid for the major categories of fringe benefits: paid leave, supplemental pay, insurance, retirement and savings and legally required benefits. The ECEC also reports the average total compensation, wages and salaries, and total costs of fringe benefits paid by employers, broken down by geographic region, census division, and locality.30

Using the aforementioned data sets from the ECEC, DOL can determine the appropriate level of fringe benefits that must be offered and paid to LCA and PERM program workers. The ECEC provides data on health and retirement benefits, and wages and wage-related pay such as paid leave and supplemental pay. The wages reflected in the OEWS survey capture the wages and wage-related parts of total compensation. Employers paying wages will already be paying the ‘legally required’ payroll taxes. Therefore, the compensation missing from the OEWS wage rates is the cost of retirement and health benefits, which are about 11% of private sector compensation. The amount of pay reflecting these benefits that employers of LCA and PERM program workers should pay can easily be determined by taking the ratio of the sum of health and retirement benefits to the wages paid (the sum of wages, paid leave and supplemental pay). This can be determined for a broad occupational grouping and perhaps done at a regional level as well. This ratio when multiplied by the OEWS wage shows the amount of benefits that would be comparable to that earned in the private sector or civilian sector.

Although the occupational groups and geographic areas listed and reported in the ECEC are not as numerous and detailed as those in the OEWS’s occupational categories and geographical areas, this should not deter the DOL from utilizing these data to calculate the percentage of wages that should be added on as fringe benefits to the OEWS wage. Only a percentage to be added on must be determined – not an exact dollar amount. 

Thus, the ECEC data are sufficient to provide DOL–by region and broad occupational group–an average level of insurance and retirement benefits received by employees in that job and in that area. Following precedent from the DBA and SCA, the fringe benefits could be paid by the employer through any combination of a variety of options, such as paid leave, health and life insurance, retirement and savings accounts, etc., or the employer could simply pay the benefits in cash.

Unfortunately, there is very little transparency regarding whether employers using the H-1B, H-1B1, E-3, and EB-2 and EB-3 programs are offering fringe benefits, or to what extent. A requirement that these fringe benefits be offered to LCA and PERM program workers would ensure that the wages and working conditions of similarly employed workers are not adversely impacted. 

The current DOL compliance guidance on benefits for H-1B workers encourages benefits arbitrage through outsourcing and fissuring. The Wage and Hour Division fact sheet on the subject (#62L) reads, “The employer must offer benefits to H-1B workers on the same basis, and in accordance with the same criteria, as the benefits the employer provides to similarly employed U.S. workers.”31 By defining similarly employed workers as restricted only to those directly employed by the H-1B employer, DOL is encouraging benefits arbitrage by outsourcing firms, which can offer substandard benefits to all its employees and still comply with this interpretation of the H-1B rules.

6. DOL should prohibit employer-provided private wage surveys from being used as alternative sources of wage data to set prevailing wages

Under the main H-1B prevailing wage regulation language at 20 C.F.R. §655.731, an employer has a number of options at their disposal to determine a prevailing wage for an LCA. In other words, the OEWS wage levels are just one of the available options. The employer may use one of the following sources to establish a prevailing wage: the OEWS wage, the wage set in an applicable Collective Bargaining Agreement, an applicable wage set by the Davis-Bacon Act or McNamara-O’Hara Service Contract Act, an Office of Foreign Labor Certification National Processing Center prevailing wage determination, or a wage set by an independent authoritative source or another legitimate source of wage data. However, if the employer is paying a higher wage to similarly situated U.S. workers that it already employs, then it must pay the H-1B worker same higher “actual wage,” that it is paying the U.S. worker. (Specifically defined as “the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question.”)

Therefore, employers do not need to use the OFLC’s calculated levels from OEWS data to determine a prevailing wage for an LCA or permanent labor certification application. The NPRM would improve the longstanding problems in how the prevailing wage is determined when using the OFLC-generated OEWS wage rates, but in the NPRM, DOL states that it considered whether to prohibit—but ultimately decided to permit—the continued use of an independent authoritative source or another legitimate source of wage data, which includes private wage surveys provided by employers and accepted by DOL. Standards for such alternative sources of wage data are described in 20 CFR § 655.731. In our 2020 report, we showed in Table 1 that in 2019, at least 9% of all certified wages for H-1B positions on LCAs were set by a private wage survey or other source accepted by the OFLC as legitimate.32

We strongly urge DOL to eliminate the use of private wage surveys provided by employers for setting wage rates in the LCA programs or for EB-2 and EB-3 green cards. While the share of LCAs approved with wages set by private wages surveys is relatively small at the moment, it is likely that the use, and abuse, of private wage surveys will expand substantially after publication of a final rule that is consistent with the wage level percentiles proposed in the NPRM. This will occur because employers will be motivated to use private surveys as a loophole to avoid paying the new higher wage percentiles.

DOL’s justification for continuing to allow private wage surveys is based on an analysis that is confusing. On the one hand, the agency claims that private surveys yield a wage 20% higher on average than the OEWS equivalent, but also says that wage surveys are necessary for niche or very specialized markets where, “occupations [are] not well represented in OEWS datasets.”33 The two claims are in contradiction. If a private wage survey is used to establish a wage in a niche job market, presumably not covered by the OEWS, then how can DOL feasibly calculate the differences? Footnote 211 in the NPRM does not provide sufficient detail to test this claim.

If DOL does not immediately eliminate the use of private surveys, it should at least ensure that usage of such surveys are rare and approved in only exceptional cases. Employers should be required to provide extensive documentation and justification for why the OEWS is an inadequate data source for determining the prevailing wage.

The recent history of the use of private wage surveys to set wages in the H-2B visa program—a temporary work visa program for lower-wage jobs outside of agriculture including in landscaping, forestry, hospitality, and construction—is instructive and should inform DOL’s review of wage surveys and other sources of wage data for setting H-1B wages. The evidence is clear in the H-2B context that when employers use private wages surveys, they primarily use them to pay lower wages than would otherwise be required.

In 2013 when DOL raised the minimum H-2B prevailing wage from the 17^th wage percentile to the mean wage for the occupation and local area, H-2B employers immediately and en masse, shifted their business model to use private wage surveys to set H-2B wage rates at below-average wage rates. Evidence revealed in federal litigation clearly suggests that the shift to the use of private wage surveys was a systematic response to higher wage rates, and one that was clearly successful. Specifically, in the nine months beginning soon after the H-2B wage rule was updated—between July 1, 2013, and March 31, 2014—employers increased their submissions of private wage surveys for H-2B prevailing wage determinations by 3,182%, as compared with the 12 months leading up to the federal court decision that invalidated the previous H-2B wage rule. In 21.1% of those prevailing wage determinations set by private wage surveys, the certified H-2B wage was lower than the previous prevailing wage system where the Level I H-2B prevailing wage was set at the 17th percentile wage by occupation and local area, according to OFLC-generated OEWS wage survey data, and 94.4% of the determinations were for a wage that was lower than the Level II wage, at the 34th percentile.34 Despite the fact that the H-2B prevailing wage has been set at the local average wage and DOL restricted the use of private wage surveys in 2015, they are still commonly used and successful at lowering wages for H-2B workers. One clear example of this which has been detailed, is a group of H-2B workers employed as crabpickers in Maryland—they earned roughly 25% less per hour than they should have been paid according to the local corresponding OEWS wage.35

The downside risk of continuing to allow private wage surveys—creating loopholes and administrative burdens—outweighs the risk to workers that the OEWS prevailing wage results in lower wages. If DOL’s calculations are accurate, employers should welcome the elimination of private wage surveys because the OEWS provides lower wage requirements and reduced costs in terms of purchasing survey data and/or conducting entirely new surveys.

7. If DOL considers permitting the use of employer provided private wage surveys, it should first conduct a detailed analysis of their usage and impact on H-1B wage rates, make the findings public, and issue a separate NPRM focused solely on private wage surveys

In order to promote transparency and comport with the statutory requirement that H-1B employers “will provide working conditions for [H-1B workers] that will not adversely affect the working conditions of workers similarly employed,”36 DOL should immediately prohibit the use of private wages surveys. However if DOL wishes to still consider their usage, DOL should conduct a study to benchmark the use of alternative wage data and especially private wage surveys against the OFLC-generated OEWS prevailing wages, to identify whether there are any systematic biases in such sources. If such biases are found, DOL could propose a new NPRM with additional guidance and safeguards to ensure that the alternative wage sources are not undermining U.S. wage standards. DOL should also conduct an analysis on the occupations that have been approved for wage setting with private wages surveys, to examine which occupations employers are claiming to be so unique that they do not fit within the definitions of over 800 occupations available in BLS’s Standard Occupational Codes, as well as analyze whether private wage surveys have negatively impacted conditions for H-1B workers and similarly situated workers.

It is important to note that, while in the aggregate, the use of private wage surveys is roughly 6.5% according to the NPRM, we know from our own reviews of LCA disclosure data that some firms rely on private wage surveys extensively. DOL should examine how private wage surveys vary across firms, industries, and occupations. Firms that rely on private wage surveys for more than 3% of the positions in their LCAs should be scrutinized and audited to ensure they are not being utilized to undercut the standards set by OEWS wage data. 

8. DOL must put measures in place that would prevent employer misclassification of H-1B workers at the wrong wage levels

As noted earlier, the NPRM requires that minimum H-1B, H-1B1, E-3, EB-2, and EB-3 salaries are set at more realistic wage rates that reflect the local market rates for the jobs they fill. While each wage level is intended to correspond to the position description, in practice the employer has substantial discretion choosing the skill level and DOL does not verify that a prevailing wage is appropriate unless a lawsuit or a complaint is filed by a worker. Such complaints are unlikely since it would require a migrant worker to blow the whistle on their own employer, the same employer that controls the worker’s visa status and ability to remain in the United States. We are unaware of any cases in which DOL has investigated an LCA-stage misclassification of an H-1B wage level, but there have been reports of, for example, H-1B employers receiving approval for LCAs that certify they will pay employees at the same prevailing wage level despite having job titles that clearly warrant different wage levels.

Simply put, employer selection of skill levels should be anchored to the actual duties of the position and verified by DOL and USCIS. There is no reason to allow employers to identify a skill level on a whim. If DOL does not fix this obvious problem, then the NPRM’s core objective of eliminating wage arbitrage will be undermined.

Skill level misclassification and inconsistencies undermine good governance of the H-1B program. Even a cursory examination of the LCA and I-129 data shows that such misclassifications, whether purposeful or inadvertent, are common. For example, positions with job titles leading with ‘senior’ are frequently misclassified as Level I. And even within the same employer, identical job titles are classified under different skill levels.

Yet the effectiveness of this NPRM hinges on ensuring that employers properly and consistently classify their positions at the correct skill level. DOL should take two actions. First, it should update and expand the NPWC’s Prevailing Wage Determination Policy Guidance.37 Second, it must hold employers accountable for their skill level selections.

The policy guidance should be rewritten and expanded so that it not only serves PWD adjudicators but also all employers, whether they use the OEWS or a private wage survey to determine the prevailing wage. The document should clarify skill level classification and serve as compliance guidance for all employers. The most recent NPWC policy guidance, published in 2009, is obviously inadequate and outdated. Employers are not effectively or consistently interpreting and identifying skill levels. The description of each skill level, Levels I through IV, consists of a single paragraph of ambiguous language. For example, how many years of experience should Level II consist of? Can an employer’s position that requires two to three years of experience ever be classified as Level I (Entry-Level)? If a worker with a master’s degree is filling a position that typically requires only a bachelor’s degree, can they be bumped up in skill level?

All employers should be required to follow the five-step Prevailing Wage Determination process outlined on pages 9 through 13 to identify the position’s skill level. Employers should be required to document and retain those records for inspection by USCIS when the I-129 petition for the LCA is filed. This will ensure consistent skill level identification within and across companies whether the firm uses the OEWS, private wage survey, a CBA, or requests a PWD.

Then USCIS should ensure that the worker being placed in the position is not overqualified in terms of education and experience for the position’s skill level.

Consider this example: A well-known firm received approval for two different LCAs at the same wage level (Level II), even though one LCA had the job title Senior Software Engineer and the other had the job title Software Engineer.38 The firm, a major employer of H-1B workers, is not accounting for differences in skill levels as evident from its own job titles when selecting the wage level for the LCA. Both engineers and senior engineers are receiving the exact same salary and wage level, and they are approved by DOL with zero scrutiny. Using the DOL Prevailing Wage Determination Policy Guidance, the LCAs in this case should be instantly flagged by identifying keywords such as senior, head, chief, and lead in job titles, and should be checked to determine whether the prevailing wage levels are appropriate. This example underscores a broader need for DOL to create a more robust compliance system to ensure employers do not misclassify workers at inappropriate wage levels. Our own cursory review has found hundreds of similar examples.

As a result, the LCA and petition process should be updated so that DOL reviews the qualifications of individual workers before USCIS approves a petition, to ensure that wage levels match up with the age, education, and experience of the workers being hired through the LCA and PERM programs. While USCIS currently performs this role to some extent, its adjudicators lack expertise in wage-and-hour issues and do not have the same mandate to protect labor standards as DOL staff. Therefore, these functions should be undertaken by the proper agency. DOL and USCIS already have a mandate to cooperate on H-1B applications and enforcement; a memorandum of understanding between the Secretaries of Homeland Security and Labor could detail a process where DOL plays a prominent role in ensuring that H-1B workers are classified at the appropriate wage levels. Published guidance from DOL on skill levels that is more detailed, clearer, and more realistic would also be helpful for everyone involved—employers and adjudicators alike.

9. DOL has failed to enforce the “actual wage” component of the H-1B prevailing wage rule and should begin enforcing it immediately

Under the prevailing wage statute, although an employer has several options at their disposal to determine a prevailing wage for an LCA, they must offer the higher of either the prevailing wage or the “actual wage,” which the corresponding regulation at 20 C.F.R. §655.731 defines as “the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question.”

DOL has not exercised its authority to enforce the actual wage requirement. This is a wasted opportunity for one of the most important tools DOL has at its disposal to hold employers accountable for required wages. In order to ensure that H-1B employers are not undercutting the wage rates they pay H-1B workers, DOL should immediately begin enforcing this requirement.

In late 2021, we published a report detailing how thousands of skilled migrants with H-1B visas working as subcontractors at well-known corporations like Disney, FedEx, Google, and others appear to have been underpaid by one firm to the tune of at least $95 million in one single year.39 The victims likely included not only the H-1B workers but also the U.S. workers who were either displaced or whose wages and working conditions were degraded when employers were allowed to underpay skilled migrant workers with impunity. The workers in question were employed by HCL Technologies, an India-based IT staffing firm that earned $11 billion in revenue in 2020. HCL is consistently one of the top 20 H-1B employers and appears to have engaged in the systematic and strategic wage theft of its H-1B workers by exploiting the lax to nonexistent enforcement of the actual wage requirement. According to its own internal documents, HCL targeted its new H-1B hires expressly based on the spread between what it paid its own U.S. employees versus what it pays its own H-1B workers.

The report discusses our analysis of an internal HCL document, released as part of a whistleblower lawsuit against the firm. The document suggests that HCL—and perhaps other firms with similar business models—are not paying the legally required amount that corresponds to what is being paid to U.S. worker employees at HCL. The HCL document revealed that the large-scale illegal underpayment of H-1B workers that appears to be occurring is a core part of the HCL’s competitive strategy, and likely facilitated $95 million in stolen wages from HCL’s H-1B employees in just one year. Such abuses are surely widespread among H-1B employers because DOL has done virtually nothing to ensure program integrity by enforcing the H-1B wage rules, in particular the actual wage rule.

DOL could easily begin enforcing the actual wage provision by requiring H-1B employers to submit evidence documenting the wage rates paid to U.S. workers who are similarly employed in occupations for which the employer is also hiring H-1B workers. Employers must already “keep records for how they calculate the actual wages.” To our knowledge, DOL has never initiated an investigation regarding compliance with the “actual wage” provision of the law. The DOL Secretary should exercise their authority to inspect the actual wages paid by H-1B employers. The Secretary can do so without a complaint from a worker, under their authority to certify investigations, and should do so if presented with credible evidence of violations. DOL should provide clear compliance guidance for the actual wage provision and then require that H-1B employers attest to the wage rates they pay similarly situated U.S. workers and include them in the LCA documentation, and DOL should conduct audits of employers on a regular basis to ensure compliance. The audits could begin with the employers that hire large numbers of H-1B workers, for example, those that employ more than 25 H-1B workers, as well as H-1B dependent firms.

Secondary employers should also be required to submit LCAs and evidence documenting the wage rates paid to U.S. workers in the occupations that H-1B workers will be hired for through an outsourcing firm. Otherwise, some H-1B outsourcing firms—which almost exclusively pay H-1B workers at the two lowest wage levels, and employ H-1B and L-1 workers almost exclusively—will be able to game the system by using the actual wage paid to their own employees to meet the requirement, and not the employees of the secondary employer, where the H-1B workers will be placed—and where wages paid to the U.S. workforce are likely to be higher.

10. DOL should require secondary employers of H-1B workers to attest that they will not adversely affect wages and working conditions

Outsourcing companies are using the H-1B program to underpay H-1B workers, replace U.S. workers, and send tech jobs abroad. Typically, in this scenario, H-1B workers do computer and engineering work at the office of a U.S. employer but are employed by an outsourcing company, some of which are based abroad or have major operations abroad.40 The many reported cases of U.S. workers being laid off and replaced by H-1B workers have all been facilitated by this arrangement. In multiple incidents, the H-1B workers have been hired with annual wages of around $30,000 to $40,000 less than the workers they have replaced. Before they are laid off, the U.S. workers are often forced to train their own H-1B replacements as a condition of their severance packages; this is euphemistically known as “knowledge transfer.” Major, profitable U.S. employers like Disney and Toys “R” Us—as well as public employers and institutions like the University of California and Southern California Edison—have laid off thousands of U.S. workers who were forced to train their own replacements. Eventually, many of the outsourced jobs filled by H-1B workers get moved offshore.41

Contrary to the popular narrative proffered by corporations that support expanding and deregulating the H-1B visa program—the staffing firms that use H-1B visas are not using them to keep technology jobs in the United States—instead they are using them precisely to facilitate the offshoring of as many of those jobs as they can. That is in fact, the business model of those firms. News reports, including from the New York Times and Bloomberg, have shown that outsourcing companies “game the system” in order to obtain a high share of H-1B visas, which leaves fewer available for the firms that directly employ H-1B workers.42

The outsourcing/staffing model of employment generally may increase the incidence of labor and employment law violations by separating the main beneficiary of the labor provided by H-1B workers—the third-party firm that hires the outsourcing firm, i.e. the “lead” employer—from the H-1B workers who perform the work. Firms that rely on outsourced H-1B workers are a textbook example of what former DOL Wage and Hour administrator David Weil calls a “fissured” workplace, where the relationship between the worker and the lead employer is fissured, or broken, via the use of a temp agency or subcontractor43 (in this case the temp agency or subcontractors are the H-1B outsourcing firms). Research shows that fissuring leads to a wage penalty for workers who are subcontracted, employed as temps, and work for staffing firms,44 in part because the subcontractor keeps a percentage of the wages earned by the workers. It is also common knowledge that employers use this model to avoid paying for benefits like health care, retirement funds, and to avoid liability for labor violations. Because the staffing and outsourcing model contributes to the fissuring of the labor market, it should not be allowed as part of the U.S. immigration system—not in H-1B or in any other temporary or permanent immigration programs.

One way to address the abuses of the outsourcing/staffing firms, which operate as secondary employers, would be to issue policy guidance and update the appropriate DOL ETA application forms so that secondary employers to which H-1B workers are outsourced will be required to file Labor Condition Applications with DOL. Such guidance, which was considered in 2021 but then abandoned,45 would close the loophole that allows firms like Disney and Southern California Edison to replace its U.S. employees with H-1B workers by employing them through an outsourcing firm.46 Using Disney as an example, implementing this rule would require client firms like Disney—that benefit and profit from hiring outsourcers—to acknowledge their employment relationship with H-1B workers who are employed by outsourcers like Infosys and Tata, by requiring Disney to file its own LCA. By doing so, Disney would attest that hiring the H-1B worker through the outsourcer is not adversely affecting the wages and working conditions of the Disney workforce.

11. DOL should publish Labor Condition Application and permanent labor certification data in real-time on a central database

DOL publishes detailed LCA and permanent labor certification (PERM) disclosure data, but it is typically lagged by at least one quarter, and often much longer. The agency should publish LCA and PERM public access file applications in real-time to enable U.S. workers to apply for these positions. This would enhance the integrity of the programs and better align them to their purposes by ensuring that workers hired with temporary visas and green cards are filling true labor shortages.

U.S. workers have long complained loudly that employers hide job openings from them, reserving them for visa holders and PERM applicants. Even when those jobs are advertised, as is required by the PERM labor certification process, they are often placed in obscure locations. Workers call such job advertisements “fake job postings.” A recent ProPublica investigation has referred to the practice as “The Tech Recruitment Ruse.”47

The agency already collects the data and publishes it regularly on the OFLC disclosure data. But even a one-quarter year lag time renders it useless for job seekers. Publishing it in real-time would unlock enormous value for workers at little or no cost to the government or employers.

12. DOL had the requisite legal authority to update the H-1B prevailing wage levels

As discussed in detail in our 2020 report, DOL has the requisite legal authority to change the H-1B prevailing wage levels to an appropriate rate that protects wage standards and prevents adverse effects on U.S. workers in H-1B occupations. No analyst or commentator has credibly argued otherwise. For far too long, the H-1B wage levels have been set at an artificially low level that undercuts U.S. wage standards, therefore, it is reasonable for DOL to increase the minimum wage levels so that Level I is no lower than the local median wage.

13. DOL should expand the LCA process to include a front-end screening process that reviews the labor and employment law records of employers; those that have violated certain laws in the previous five years should be prohibited from hiring through the H-1B program

In a previous comment to the Department of Homeland Security (DHS), regarding the 2023 H-1B “modernization” rule,48 we recommended that DHS should expand the H-1B Registration System to include a front-end screening process that reviews the labor and employment law records of employers. If employers have violated certain laws, they should be prohibited from hiring through the H-1B program. We further recommended that DHS should consult with DOL to develop a list of key applicable laws and operate the system jointly with DOL, and ideally, also operate the updated registration process jointly, with DOL screening employer records through the LCA process. We reiterate that recommendation here and urge DOL to take steps to exclude lawbreaking employers that violate labor, employment, and immigration laws. While we realize our comment will only be read by DOL, we nevertheless include our discussion about DHS’s role in this process because we believe DOL and DHS should work in tandem to reduce labor and employment violations in the H-1B program.

In the 2023 proposed rule, Modernizing H-2 Program Requirements, Oversight, and Worker Protections,49 DHS proposed to create or expand several additional bars to approval of new petitions filed by H-2 petitioners who have previously committed legal violations related to the H-2 programs. EPI submitted comments generally supporting the proposed changes, which were adopted as a final rule.50 Although they fail to go far enough on their own, if adequately implemented the provisions will help curb abusive employers’ exploitation of the H-2 programs and will level the playing field for employers that obey the law. EPI additionally commented that employers that commit serious violations repeatedly should be permanently banned from the H-2 programs, as they have demonstrated their inability or unwillingness to comply with the programs’ requirements.

In those comments EPI further recommended that the DHS strengthen section 214.2(h)(10)(iii)(3), which addresses violations of “any applicable employment-related laws and regulations” by expanding it to include a number of other violations and making denial of petitions mandatory—rather than discretionary—if employers have violated any of those laws in the preceding five years.51 

We believe DHS should consider similar provisions for employers seeking to hire through the H-1B program because there have been numerous credible accusations of lawbreaking against H-1B employers, as well as investigations and litigation, finding that H-1B employers and recruiters that have been guilty of wage theft, financial bondage, and even human trafficking. The reality is that DOL has limited resources and has interpreted its authority to investigate H-1B employers as constrained, and it is difficult in practice for H-1B workers to come forward and complain themselves about employer lawbreaking—because they could face retaliation and lose their status, and possibly the opportunity to become lawful permanent residents—which means DOL likely receives fewer complaints than they otherwise would. And even when DOL does receive complaints, as numerous reports have shown, DOL often lacks the resources to investigate and take action against lawbreaking employers.52

Thus, at a minimum, to keep lawbreaking employers out of the H-1B program, DHS should have its own list of legal violations and deny any petition for an employer that has violated any of the laws on the list in the preceding five years. That would act as a backstop to prevent lawbreaking employers from hiring through the H-1B program. At present, as DHS rightly points out in the November 2023 Modernizing H-2 Program NPRM, even some of the worst violators of the law are allowed to recruit and hire H-2 workers. We know that this is also the case in the H-1B program. In fact, in the H-1B program, some of the biggest users of the program are also the most egregious violators, receiving thousands of H-1B petition approvals per year. And then after they violate the law, H-1B employees are afraid to complain to authorities because their immigration status is tied to their employer, and even if they are brave enough to lodge a complaint, as noted above, DOL may lack the resources to investigate violations and hold the employer accountable.

As EPI also recommended in the H-2 NPRM, DHS should go further to implement this by also cooperating with DOL to develop a front-end screening process that takes place at the labor condition application (LCA) stage, to vet the labor and employment law records of employers before they can be allowed to hire through the H-1B program. In multiple EPI reports and in comments in response to NPRMs, EPI has made a similar proposal—namely, that a front-end screening process should be created to prohibit employers with track records of wage and hour, labor, immigration, and other legal violations from hiring through the H visa programs.

To make a front-end screening process a reality, ideally, DOL should require employers to register for eligibility to use the H-1B program at the LCA stage, so employer records on compliance with labor and employment laws can be screened up front, before getting to the registration or petition stage. DOL could set up a registration process in which employers list basic information about their business and the purported need for H-1B workers (as is already done via the DOL temporary labor certification forms). As part of that new process, employers could be required to attest, under penalty of perjury and of being banned from hiring through the H-1B and other visa programs, that they have not been found to have violated any of the listed labor, employment, wage and hour, immigration, civil rights, disability, anti-trafficking, or anti-discrimination laws during the past five years. DOL could then attempt to verify by cross-referencing enforcement data and other relevant records—and could cooperate with other worker protection agencies like the NLRB and EEOC—and ultimately certify employers that have not violated the applicable laws.

To break established patterns of abuse, employers that have violated any labor, employment, wage and hour, immigration, civil rights, disability, anti-trafficking or anti-discrimination laws should be prohibited from submitting an LCA (or having their LCA approved) and ultimately not be allowed to hire H-1B workers. Employers that have clean records and an LCA approved by DOL could then continue on with the petition process at USCIS.

Given the present and likely future reality that WHD and other worker protection agencies will continue to be vastly underfunded and understaffed,53 such a screening process on the front end of the H-1B application process could act as a useful and efficient tool to prevent legal violations without WHD having to go through lengthy and costly investigations on the back end, after workers have arrived in the United States and been robbed or otherwise exploited.

At the petition level, if a new screening process at DOL is not created that takes place before or as part of the LCA process, DHS should, at a minimum and as noted above, build on proposed section 8 C.F.R. 214.2(h)(10)(iii)(B) for H-2 petitions by creating a list of key labor, employment, wage and hour, immigration, civil rights, disability, anti-trafficking, and anti-discrimination laws, the violation of which would establish strong evidence that an employer does not treat their employees well and is unlikely to follow employment and immigration laws with respect to their H-1B employees. Although this would work best in tandem with a front-end screening process at the LCA stage, DHS could make significant progress in keeping lawbreaking employers out of the H-1B programs by mandating that any employer that has violated any of the listed laws will be prohibited from having a petition approved for hiring H-1B workers.

Another option would be for DHS to modify the existing H-1B Registration System so that it also screens the records of employers. That way DHS could use it to both manage the annual cap and to assess and certify whether employers are eligible to hire through H-1B based on their past legal violations. Employers could be required to attest, under penalty of perjury and of being banned from hiring through the H-1B and other visa programs, that they have not been found to have violated any of the listed labor, employment, wage and hour, immigration, civil rights, disability, anti-trafficking, or anti-discrimination laws during the past five years. USCIS could work to verify the employer attestation, although ideally DOL should partner with to do this, by cross-referencing DOL enforcement data and other relevant records—preferably also in partnership with other worker protection agencies like the NLRB and EEOC—and would then ultimately certify employers that have not violated the applicable laws, allowing them to continue with the registration process.

Conclusion

The H-1B visa program is the largest temporary work visa program in the United States and an important pathway into the U.S. labor market for skilled migrants from around the world—but a pathway that has serious deficiencies when it comes to the workplace rights of migrant workers and for preserving U.S. labor standards. While less is known about the other LCA programs, H-1B1 and E-3, they have even fewer applicable rules in place to protect workers, which likely means they are having similar impacts on worker rights and labor standards. By issuing this NPRM, DOL has taken an important first step towards reversing decades of artificially depressed wage rates for H-1B workers, and for making the prevailing wage methodology rules consistent across the other LCA programs and for EB-2 and EB-3 green cards. This will benefit other similarly situated workers and simplify and streamline the prevailing wage determination process. Nevertheless, as our comment recommends, more must be done—in this rulemaking and other executive actions—to improve the effectiveness of the updated prevailing wage rates and on enforcement in the LCA and PERM programs, in order to safeguard U.S. wages and labor standards.

Daniel Costa
Director of Immigration Law and Policy Research
Economic Policy Institute
Washington, DC

Ron Hira, Ph.D., P.E.
Associate Professor
Department of Political Science
Howard University

Endnotes

1. See for example, Daniel Costa and Ron Hira, H-1B visas and prevailing wage levels: A majority of H-1B employers—including major U.S. tech firms—use the program to pay migrant workers well below market wages, Economic Policy Institute, May 4, 2020; Ron Hira and Daniel Costa, New evidence of widespread wage theft in the H-1B visa program: Corporate document reveals how tech firms ignore the law and systematically rob migrant workers, Economic Policy Institute, December 9, 2021.

2. Employment and Training Administration, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, Interim Final Rule, request for comments, U.S. Department of Labor, 20 CFR Part 655, DOL Docket No. ETA-2025-0008, RIN 1205-AC24 (October 2, 2025).

3. Daniel Costa and Ben Zipperer, “Trump’s new H-2A wage rule will radically cut the wages of all farmworkers: New estimates show farmworkers stand to lose $4.4 to $5.4 billion annually under DOL’s updated Adverse Effect Wage Rate,” Working Economics blog (Economic Policy Institute) November 26, 2025; for additional discussion and background, see Daniel Costa, “EPI comment on DOL’s 2025 Interim Final Rule modifying the AEWR methodology for H-2A farmworkers,” Public Comments, Economic Policy Institute, December 1, 2025.

4. PERM stands for Program Electronic Management Review, and is the first step for employers who wish to sponsor an employee for permanent residence in the United States through the EB-2 and EB-3 categories.

5. See for example, Daniel Costa and Ron Hira, H-1B visas and prevailing wage levels: A majority of H-1B employers—including major U.S. tech firms—use the program to pay migrant workers well below market wages, Economic Policy Institute, May 4, 2020.

6. George Borjas, The H-1B Wage Gap, Visa Fees, and Employer Demand, NBER working paper 34793, March 2026. See pages 3-4.

7. USCIS, X.com post, May 21, 2026 at 1:37 PM, https://x.com/USCIS/status/2057561453373399339

8. https://www.newyorkfed.org/research/college-labor-market#–:explore:outcomes-by-major

9. Here are just a sample of some of the recent news accounts in major media outlets: Katherine Bindley, “The ‘Great Hesitation’ That’s Making It Harder to Get a Tech Job,” Wall Street Journal, May 18, 2025; Christopher Rugaber, “Unemployment among young college graduates outpaces overall US joblessness rate,” Associated Press, June 26, 2025; Sydney Ember, “Young Graduates Face the Grimmest Job Market in Years,” NY Times, March 24, 2026.

10. Daniel Costa and Ron Hira, H-1B visas and prevailing wage levels: A majority of H-1B employers—including major U.S. tech firms—use the program to pay migrant workers well below market wages, Economic Policy Institute, May 4, 2020.

11. See for example, Connor O’Brien, Jeremy Neufeld, and Amy Nice, A Prescription for Fixing the Prevailing Wage System: Replacing Blind Benchmarking with Experience Benchmarking, Institute for Progress, March 27, 2026.

12. See Overview section in Wage and Hour Division, “H-1B Program,” web page on the U.S. Department of Labor website.

13. U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions, 86 Fed. Reg. 1676, at 1720, Table 7, June 8, 2021.

14. See Table 12 in Department of Homeland Security, Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H–1B Petitions, Notice of proposed rulemaking, CIS Docket No. 2820-25, DHS Docket No. USCIS-2025-0040, RIN: 1615-AD01 (September 24, 2026).

15. See for example, Daniel Costa and Ron Hira, H-1B Visas and Prevailing Wage Levels: A Majority of H-1B Employers—Including Major U.S. Tech Firms—Use the Program to Pay Migrant Workers Well Below Market Wages, Economic Policy Institute, May 4, 2020.

16. NPRM at 15490.

17. Norman Matloff, “H-1B Visas Are Transforming America,” Compact, October 8, 2025; Norman Matloff, Are foreign students the ‘best and brightest’? Data and implications for immigration policy, Economic Policy Institute, Briefing Paper #356, February 28, 2013.

18. NPRM at 15490.

19. Office of Foreign Labor Certification, OFLC Wage Search, last visited on May 23, 2026.

20. United States Citizenship and Immigration Services, Characteristics of H-1B Specialty Occupation Workers, Fiscal Year 2024 Annual Report to Congress, October 1, 2023 – September 30, 2024, U.S. Department of Homeland Security, April 29, 2025.

21. U.S. Bureau of Labor Statistics, Table 5.3 Educational attainment for workers 25 years and older by detailed occupation, 2022–23 (Percent), Employment Projections, U.S. Department of Labor, retrieved May 23, 2026; U.S. Bureau of Labor Statistics, Table 11b. Employed people by detailed occupation and age, Labor Force Statistics from the Current Population Survey, U.S. Department of Labor, retrieved May 23, 2026.

22. U.S. Bureau of Labor Statistics, Table 11b. Employed people by detailed occupation and age, Labor Force Statistics from the Current Population Survey, U.S. Department of Labor, retrieved May 23, 2026.

23. Connor O’Brien, Jeremy Neufeld, and Amy Nice, A Prescription for Fixing the Prevailing Wage System: Replacing Blind Benchmarking with Experience Benchmarking, Institute for Progress, March 27, 2026. PDF available here: https://ifp.org/wp-content/uploads/IFP_Prevailing_Wage_Experience_Benchmarking_.pdf

24. NPRM at 15490.

25. NPRM at 15474.

26. For the Davis-Bacon Act, see 40 USC §3141(2); and the Service Contract Act at 41 USC §351(a)(2).

27. Bureau of Labor Statistics, U.S. Department of Labor, Occupational Employment Wage Statistics, Frequently Asked Questions, at Section C, Number 8.

28. Bureau of Labor Statistics, U.S. Department of Labor, Employer Costs for Employee Compensation – December 2025, March 20, 2026.

29. Bureau of Labor Statistics, U.S. Department of Labor, Employer Costs for Employee Compensation – December 2025, March 20, 2026.

30. See tables, Bureau of Labor Statistics, U.S. Department of Labor, Employer Costs for Employee Compensation – December 2025, March 20, 2026.

31. Wage and Hour Division, “Fact Sheet #62L: What benefits must be offered to H-1B workers,” U.S. Department of Labor, Revised July 2008.

32. Daniel Costa and Ron Hira, H-1B visas and prevailing wage levels: A majority of H-1B employers—including major U.S. tech firms—use the program to pay migrant workers well below market wages, Economic Policy Institute, May 4, 2020.

33. NPRM at 15479.

34. See discussion of the 2013 Interim Final Rule setting the H-2B prevailing wage methodology in Daniel Costa, The H-2B temporary foreign worker program: For labor shortages or cheap, temporary labor? Economic Policy Institute, January 19, 2016.

35. Daniel Costa, “H-2B crabpickers are so important to the Maryland seafood industry that they get paid $3 less per hour than the state or local average wage,” Working Economics (Economic Policy Institute blog), May 26, 2017.

36. 8 U.S.C. 1182 (n)(1)(A)(i)(II).

37. Employment and Training Administration, Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs, U.S. Department of Labor, Revised November 2009.

38. Ethan Baron, “H-1B: Uber snatches up more foreign-worker visas as it lays off hundreds of employees,” Mercury News, October 17, 2019.

39. Ron Hira and Daniel Costa, New evidence of widespread wage theft in the H-1B visa program: Corporate document reveals how tech firms ignore the law and systematically rob migrant workers, Economic Policy Institute, December 9, 2021. See also, news coverage of our report, for example, Lauren Kaori Gurley, “Analysis Claims Migrant Tech Workers Have Been Underpaid by Tens of Millions,” Vice News, December 9, 2021.

40. See for example, Senator Richard Durbin, “How American Jobs are Outsourced,” YouTube.com video, April 16, 2016.

41. See for example, Stef Kight, “U.S. companies are forcing workers to train their own foreign replacements,” Axios, December 29, 2019; Julia Preston, “Pink Slips at Disney. But First, Training Foreign Replacements,” New York Times, June 3, 2015; Julia Preston, “Toys ‘R’ Us Brings Temporary Foreign Workers to U.S. to Move Jobs Overseas,” New York Times, September 29, 2015; Michael Hiltzik, “How the University of California Exploited a Visa Loophole to Move Tech Jobs to India,” Los Angeles Times, January 6, 2017; Patrick Thibodeau, “Southern California Edison IT Workers ‘Beyond Furious’ over H-1B Replacements,” Computerworld, February 5, 2015.

42. Eric Fan, Zachary Mider, Denise Lu, and Marie Patino, “How thousands of middlemen are gaming the H-1B program,” Bloomberg, July 31, 2024; Julia Preston, “Large Companies Game H-1B Visa Program, Costing the U.S. Jobs,” New York Times, November 10, 2015.

43. David Weil, The Fissured Workplace: How Work Became So Bad for So Many and What Can Be Done to Improve It, Harvard, 2014.

44. A number of studies show a wage penalty for subcontracted/outsourced workers. For example, see Arindrajit Dube and Ethan Kaplan, “Does Outsourcing Reduce Wages in the Low-Wage Service Occupations? Evidence from Janitors and Guards,” Cornell University ILR Review. January 1, 2010); Deborah Goldschmidt and Johannes Schmieder, “The Rise of Domestic Outsourcing and the Evolution of the German Wage Structure,” The Quarterly Journal of Economics, Oxford University Press, vol. 132(3), 2017, pages 1165-1217; Andres Drenik, Simon Jäger, Pascuel Plotkin, and Benjamin Schoefer “Paying Outsourced Labor: Direct Evidence from Linked Temp Agency-Worker-Client Data,” Econometrics Laboratory, University of California, Berkeley, September 2020.

45. Employment and Training Administration, U.S. Department of Labor, “U.S. Department of Labor revises interpretation, issues new guidance clarifying filing, compliance requirements in H-1B visa program,” Press Release Number 21-97-NAT, January 15, 2021.

46. Julia Preston, “Pink Slips at Disney. But First, Training Foreign Replacements,” New York Times, June 3, 2015.

47. Alec MacGillis, “The Tech Recruitment Ruse That Has Avoided Trump’s Crackdown on Immigration,” ProPublica, June 3, 2025.

48. Daniel Costa and Ron Hira, “EPI comments on DHS’s “Modernizing H-1B” proposed rule,” Public Comments, Economic Policy Institute, December 22, 2023; commenting on U.S. Department of Homeland Security, Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers, Notice of proposed rulemaking, CIS No. 2745-23, DHS Docket No. USCIS-2023-0005, RIN: 1615-AC70, 88 Fed. Reg. 72870 (October 23, 2023).

49. U.S. Department of Homeland Security, Modernizing H-2 Program Requirements, Oversight, and Worker Protections, Notice of Proposed Rulemaking, CIS No. 2740-23 and DHS Docket No. USCIS-2023-0012, RIN: 1615-AC76, 88 Fed. Reg. 65040 (September 20, 2023).

50. U.S. Department of Homeland Security, Modernizing H-2 Program Requirements, Oversight, and Worker Protections, Final Rule, CIS No. 2740-23; DHS Docket No. USCIS-2023-0012, RIN 1615-AC76, 89 Fed Reg. 103202 (December 18, 2024).

51. See EPI comment on the H-2 programs in the comment submitted to DHS in November 2023; Daniel Costa, EPI comments on DHS’s proposed rule on “Modernizing H-2 Program Requirements, Oversight, and Worker Protections,” Economic Policy Institute, November 20, 2023.

52. See for example, Rebecca Rainey, “Inadequate Labor Department Resources Stymie Enforcement Efforts,” Bloomberg Law, November 7, 2023.

53. See for example, AFL-CIO, Workers’ Rights Ice’d Out, February 25, 2026; Rebecca Rainey, “Trump’s Federal Workforce Cuts Hit Labor Department Enforcement,” Bloomberg Law, Feb. 24, 2025; Daniel Costa, Josh Bivens, Ben Zipperer, and Monique Morrissey, The U.S. benefits from immigration but policy reforms needed to maximize gains: Recommendations and a review of key issues to ensure fair wages and labor standards for all workers, October 4, 2024 (see Figure J); Daniel Costa and Philip Martin, Record-low number of federal wage and hour investigations of farms in 2022: Congress must increase funding for labor standards enforcement to protect farmworkers, Economic Policy Institute, August 22, 2023; Ihna Mangundayao, Celine McNicholas, and Margaret Poydock, “Worker protection agencies need more funding to enforce labor laws and protect workers,” Working Economics blog (Economic Policy Institute), July 29, 2021.

In part 1 of this two-part blog post series, I provided background and discussion on a rider amendment that the Homeland Security subcommittee of the House Appropriations Committee proposed and passed over the summer. Originally known as Amendment #1 but later dubbed the Bipartisan Visa En Bloc amendment, it would make major changes to the H-2A and H-2B visa programs through the appropriations process, while completely circumventing the committees that should have subject matter jurisdiction in the House and Senate. Part 1 focuses on the changes and impacts in the H-2A program; this post will briefly explain the components of the rider that would make changes to the H-2B visa program and the impact of those changes, as well as one change that would affect both programs.

The H-2B program has been expanded through appropriations riders every year since fiscal year 2016

Two of my previous reports provide a fuller explanation of the background on the size of the H-2B program and a history of the legislative riders in appropriations bills that have been used to expand the size of the H-2B program. A quick recap here is warranted. In fiscal year 2016, Congress authorized a “returning worker” exemption through appropriations legislation to fund the operation of the U.S. government. The legislation exempted H-2B workers from the annual H-2B cap of 66,000 that is set in law, for fiscal year 2016, if the workers hired were previously in H-2B status in any of the preceding three fiscal years. There was no cap on the number of returning H-2B workers under the exemption.

In each year since FY 2017, Congress has, through appropriations riders, given the executive branch the discretionary legal authority to roughly double the number of H-2B visas available. Rather than specify the level of increase for the H-2B program, appropriators have passed the buck instead to the executive branch—perhaps because they didn’t want the responsibility or criticism that may come from setting a specific number—by directing the U.S. Department of Homeland Security, in consultation with the U.S. Department of Labor (DOL), to determine how many additional H-2B visas are appropriate, if any. DHS has interpreted the rider language as allowing them to issue up to 64,716 “supplemental” visas in the corresponding fiscal year. In total, it has been 10 years (FY 2016–2025) since Congress first permitted increases to the size of the H-2B program through an appropriations rider. The Biden administration in 2023, 2024, and 2025 used the full authority granted to the executive branch in the legislative riders, raising the total H-2B annual limit to 130,716.

The appropriations rider would create a new methodology to expand the H-2B cap by at least 100,000

The rider takes a different approach to allowing a higher number of H-2B visas to be issued in FY 2026. The language of the amendment states that for every employer who has had any H-2B positions certified in the past five fiscal years (2021–2025), the highest number that they had certified in those years will be the number of H-2B workers they may hire who will not count against the annual cap of 66,000. In other words, if an employer had 10 jobs certified in 2021, 15 in 2022, 20 in 2023, 100 in 2024, and 50 in 2025, they would be allowed to hire 100 H-2B workers in 2026 without them counting against the 66,000 cap.

To calculate how many workers could be hired in 2026 under this formula, a colleague and I matched employer records from DOL and identified the employers who had at least one approved H-2B job in each of the years between 2020 to 2024. (Full year data for 2025 were not available at the time of writing, so 2020–2024 are used as a proxy.) Altogether, 186,342 H-2B workers would have been exempted from the annual cap under this formula. This is almost certainly a low-end estimate because the number of H-2B jobs certified in 2020 was lower than normal because of the bureaucratic shutdowns and slowdowns caused by the start of the COVID-19 pandemic.

Table 1 shows an estimate for 2020–2024 that serves as a proxy for our estimate on the number of new H-2B workers who will be exempted from the cap in 2026 and also lists the number of new H-2B workers who will be permitted under the regular annual cap of 66,000. Altogether, the regular cap plus the supplemental cap for H-2B in 2026 would permit at least 252,342 new workers if the language in the rider becomes law. That’s an increase of almost 100%, relative to the total cap in 2023–2025, and a 282% increase, relative to the original H-2B cap of 66,000.

It’s also important to note that the annual caps and total number of workers will grow exponentially in the following years after 2026 if Congress reauthorizes the same language in the rider year after year, as they’ve done with past H-2B riders. This will occur because employers will have an incentive to apply to DOL for labor certification for as many H-2B jobs as possible because that will increase the size of their exemption from the cap for the following year.

Table 1

Total number of H-2B workers would reach 282,000 in 2026 if the rider becomes law

In a recent report, I showed that in 2024, when 64,716 supplemental H-2B visas were added to the statutory cap of 66,000, for a total cap of 130,716, there were a total of 169,177 H-2B workers. This was up from 75,122 total H-2B workers just a decade earlier. The nearly 170,000 total in 2024 included 139,541 H-2B workers with newly issued visas from the State Department, and 4,580 H-2B workers who had their employment extended with the same employer. An additional 25,056 were H-2B workers who changed employers. Workers who extend their H-2B status or change jobs are not counted against the annual cap. (In 2025 the cap was identical to the previous year; thus, final numbers for 2025 are likely to be very similar to 2024.)

To get a better sense of the total number of H-2B workers who would be employed in 2026 if the rider became law, I estimated that the same number of workers who extended their status or changed jobs in 2024 would also do so in 2026, and added that total to the 2026 total cap that would result from the rider. This is illustrated in Figure A, which shows the total number of H-2B workers from 2017 to 2024, and projections for 2025 and 2026. The annual cap plus the supplemental cap, together with H-2B extensions and job changes, will result in nearly 282,000 H-2B workers being employed in 2026—almost 113,000 more workers than were employed in 2024 and 2025.

Figure A

The rider would move 12,000 H-2B jobs to the P visa, which is not administered by the Department of Labor

The other notable change in the rider when it comes to the H-2B program is that H-2B workers employed at carnivals, traveling fairs, and circuses would be moved to the P visa program. According to DOL, in FY 2024 there were 12,398 H-2B jobs certified in the “Amusement and Recreation Attendants” occupation, which is the relevant occupation that would be moved to the P visa. There would be no annual cap on the number of amusement and carnival workers who could be employed in the P visa program.

At present, the P visa is a little-known program intended for use by professional athletes and coaches, members of an internationally recognized entertainment group, or persons performing under a reciprocal exchange program or as part of a culturally unique program. At present, the P visa program has no wage rules or worker protections and is administered exclusively by DHS, which has no staff or expertise on worker rights. This is extremely troubling, given that H-2B workers employed at carnivals and traveling fairs work grueling hours and in terrible conditions, making them some of the most exploited H-2B workers—as advocacy groups have pointed out. These workers are often paid below the minimum wage and are not paid for overtime hours. Yet DOL would no longer have any formal oversight role to ensure they are protected.

The rider language says that employers hiring H-2B carnival workers through the P visa “shall be subject to the same program requirements” of the H-2B program, which are administered by DOL. It also directs DHS and DOL to each separately publish regulations to implement H-2B carnival workers being moved to the P visa program within 180 days and finalize them within one year.

The legislators who support this amendment have provided no explanation or rationale for why it makes sense to create an entirely new process and set of regulations to move one of the biggest H-2B occupations from DOL into DHS—an agency that will be given primary responsibility over the P visa and protecting carnival workers, but which has no mandate or expertise on labor standards and employment laws. The most obvious explanation is that this legislative maneuver is simply a new way to expand the H-2B cap even beyond 252,000, in a way that gives carnival employers an unlimited supply of workers who can be exploited and underpaid. It also seems absurd to put a low-paid traveling carnival worker into the same visa category—where there’s no labor oversight—as a professional baseball player coming from abroad to sign a multimillion-dollar contract with a major league team, or a world-famous singer, dancer, or painter.

House Homeland Security appropriations rider would defund the H-2 modernization rule, restricting the ability of H-2 workers to change jobs and leave abusive employment situations

One other notable section in the rider that impacts both the H-2A and H-2B programs would prohibit DHS from spending funds to implement a regulation that took effect in January 2024—often referred to as the H-2 modernization rule. The rule, among other things, requires additional scrutiny of applications from employers that have violated the law, makes it easier for H-2 workers to be eligible for green cards through existing pathways, and expands the ability of H-2A and H-2B workers to change employers (this is referred to as visa “portability”), making it easier to leave an abusive employment situation. The regulation is far from perfect. As EPI and other advocates have pointed out, the portability provisions require additional measures to make visa portability a more practical reality, rather than just a right that exists on paper and one that can be hijacked by employers seeking to circumvent the annual cap.

Nevertheless, these three provisions in the H-2 modernization rule can undoubtedly help some workers, reducing the indentured nature of the visa programs by tilting the balance of power ever so slightly in the direction of workers. And that’s likely the exact reason that the employers and legislators pushing for the rider included this provision to defund the rule.

The H-2B program needs reforms to improve labor protections and provide H-2B workers with a pathway to citizenship

The appropriations committees in the House and Senate should not continue using parliamentary tactics to make changes to the H-2B program that would likely not pass in Congress through regular order. Instead, Congress should work with the executive branch to reform the H-2B program in the following ways: 

• ensure U.S. workers are considered for open temporary and seasonal jobs 
• craft updated wage rules that protect U.S. wage standards for all workers in H-2B industries
• provide migrant workers with new protections and allow them to more easily change jobs
• provide migrant workers with a quick path to a green card and citizenship
• prohibit lawbreaking employers from hiring through the H-2B program

As EPI and other advocates have long said, these genuine reforms are the only way to ensure that the workers playing vital roles in the U.S. economy are not being exploited and underpaid and that their employers are not able to use visa programs as an employment law loophole that ultimately erodes job quality for all.

For well over a decade now—time and time and time and time again—Congress has been making policy changes to temporary work visa programs not through the normal process of debating and passing legislation, but through a backdoor process. This involves amendments to annual appropriations legislation (known as “riders”) that fund the U.S. government. Riders that make policy changes are much more likely to pass without much public notice, debate, or pushback relative to dedicated legislation, since they are smaller parts of larger, must-pass legislation to fund the whole U.S. government. The significant changes proposed or passed in riders over the past decade have all pushed temporary work visa programs in the same direction: expanding and deregulating the H-2A and H-2B visa programs, which benefits employers at the expense of U.S. workers and hundreds of thousands of migrant workers who will continue to see reduced wages and poorer working conditions. It’s already clear that low-wage work visa programs won’t be improved during the Trump administration; instead, they’ll be made much worse.

This fiscal year, there is a particular urgency around the riders to expand and deregulate the H-2A and H-2B visa programs, in light of the Trump administration’s mass deportation effort that is arresting and deporting workers at a breakneck pace, as well as canceling temporary immigration protections that provided work authorization to millions. The Trump administration got the ball rolling on this effort with a new proposed H-2A wage regulation issued by the U.S. Department of Labor (DOL) on October 2, 2025. This proposed regulation contains a stunning admission: The administration’s mass deportation effort is likely to raise food prices. DOL’s solution to this problem of the administration’s own creation is an irrational and anti-worker solution. Instead of pushing the administration from within to stop their campaign of mass deportation, DOL proposes to lower farmworker wages by $24 billion over the next 10 years.

Having seen this proposed rule, employers who are heavily reliant on migrant laborers—especially those in the hospitality, construction, and agricultural industries—can now be confident they have a friendly administration willing to dismantle labor standards and are lobbying furiously for more work visas that allow them to employ a vulnerable workforce. Employers are making the case that H-2 visas are “a workforce issue, not immigration,” as well as an essential service that must continue to function even during the recent government shutdown. A number of lawmakers and the Trump administration seem to agree.

The latest legislative vehicle that has a chance at furthering these goals is a rider that the Homeland Security subcommittee of the House Appropriations Committee proposed and passed. It was originally known as Amendment #1 but was later dubbed the Bipartisan Visa En Bloc amendment. As Politico Pro reported, “House appropriators from both parties came together…to back big changes to visa policies that would boost the number of seasonal workers who can come to the United States.” The rider was cosponsored by three Republicans and one Democrat (but the Democrat was Henry Cuellar (D-Texas), the recent recipient of a pardon from Trump for federal bribery charges). However, it’s worth noting that because rider passed by a voice vote, there is no on-the-record vote tally showing who voted for it.

The rider still has a long way to go before becoming law and will also depend on whether an omnibus government spending bill is ultimately passed for fiscal year 2026. As of the time of publication, the Senate has not yet released their version of a Homeland Security appropriations bill. To become law, the Senate would also have to adopt the same rider provision for it to become part of the broader omnibus appropriations legislation. Nevertheless, the rider is a statement of intent from legislators who are willing to go to bat for employers seeking new exploitable and underpaid migrant workers to replace their long-term immigrant workers who have been deported or lost status.

Below is a summary of the four major changes that the Bipartisan Visa En Bloc rider amendment would make to the H-2A and H-2B visa programs. Only the first major change is discussed in this explainer, but a follow-up to this blog post will discuss the other three changes. Under the rider:

• Employers would be permitted to hire H-2A farmworkers to fill year-round jobs.
• The H-2B visa program would be expanded by at least 100,000 workers relative to its size in 2024.
• H-2B workers employed at carnivals, traveling fairs, and circuses would be moved to the P visa program, a program that has no wage rules or worker protections and over which DOL has no formal oversight role.
• DHS would not be permitted to spend funds to implement the January 2024 regulation that incrementally improves rights and protections for H-2A and H-2B workers. This regulation allows them to be eligible for green cards through existing pathways and helps them more easily change employers, reducing the indentured nature of the visa programs, and requires additional scrutiny on employer applications if they’ve committed certain violations.

The H-2A program has expanded rapidly and is rife with abuse

Employers use the H-2A visa program to fill seasonal and temporary jobs in agriculture, after employers go through a (mostly pro forma) process to prove that they could not find an available U.S. worker to hire. There is no annual limit on the number of H-2A workers that can be hired, and H-2A has in recent years been the fastest-growing U.S. work visa program, tripling over the past decade. Figure A shows the three available data sets on H-2A job certifications, petitions, and visas, as well as an estimate of the total number of H-2A workers between 2015 and 2024, with 352,682 H-2A workers estimated to have been employed in the United States last year. The vast majority of H-2A workers are employed on crop farms, picking fruits and vegetables, and the average duration of an H-2A job is roughly six months.

Figure A

There have been countless exposés from journalists and advocates that reveal how H-2A farmworkers are indentured to their employers, frequently robbed, exploited, victimized, and trafficked, and how the main source of wage and hour violations on farms comes from employers breaking H-2A rules.

The rider adopted in the House would allow H-2A workers to be employed in year-round jobs—which is currently prohibited—expanding the scope of the program and allowing H-2A workers to fill jobs on dairy, livestock, and poultry and egg farms, as well as in nurseries and greenhouses and other nonseasonal agricultural occupations. This would be a major change to H-2A, and it has long been a demand of agribusiness.

Making H-2A year-round raises three key questions:

• How many permanent, year-round jobs might be impacted?
• How will farmworker wages be impacted?
• How much will the H-2A program expand?

There are 410,000 year-round jobs in agriculture

For an answer to the first question, see Table 1, which lists four of the major agricultural industries employing farmworkers year-round, the largest of which are greenhouse and dairy jobs. Together they total nearly 410,000 full-time equivalent jobs. The industries listed do not include the many year-round (or nearly year-round) jobs that can be found on crop farms, including equipment operators and supervisors. In total, it’s possible that up to one-third of the total 1.6 million full-time equivalent jobs in agriculture could be year-round.

Table 1

DOL’s new Adverse Effect Wage Rate will result in a pay cut for H-2A workers and U.S. workers that will line the pockets of employers by billions

Next, let’s consider what would happen to the wages of farmworkers in year-round occupations if the H-2A visa program were expanded to include them.

The wages of nearly all H-2A farmworkers are set by the Adverse Effect Wage Rate (AEWR), unless the federal, state, or local hourly minimum wages are higher, or if there is an applicable local prevailing wage or collective bargaining agreement in place. The purpose of the AEWR is to ensure that H-2A workers are paid a wage that is consistent with U.S. wage standards and prevent adverse impacts of H-2A employment on the wages of farmworkers in the United States.

On October 2, 2025, DOL issued an interim final rule laying out a new AEWR methodology. A recent EPI post describes in detail how the new Trump AEWR will cut wage rates dramatically by using an inferior data set for agriculture and creating two artificial “skill levels,” which set H-2A wages at the 17th percentile of wages surveyed for farm occupations (skill level 1) and at the 50th percentile, which is the median of wages surveyed (skill level 2). EPI has also submitted a detailed comment to DOL critiquing the new Trump AEWR methodology. 

In the new AEWR, the Trump DOL also removes the previous H-2A program requirement that employers pay for 100% of housing costs for H-2A workers. In its stead, the new AEWR deducts a set amount out of every hour of an H-2A worker’s pay, to compensate the employer for H-2A housing costs. This shifts housing costs to H-2A workers who will have the added burden of paying for housing costs out of the already-low wages they earn. The housing deduction is subtracted from the AEWR—lowering a low wage even further—so low that in many states, the state minimum wage will be higher and become the de facto AEWR.

In total, DOL estimates that over $1.7 billion will be transferred from H-2A workers’ pockets back to farm employers under the new wage rule in 2026, amounting to $24 billion over the next 10 years as the program grows to over 500,000 jobs. EPI’s own estimates are that H-2A workers will see a wage cut of between $1.7 billion and $2.1 billion in 2026, depending on how state minimum wage laws are enforced. Reducing the AEWR for H-2A workers will also lower wages for U.S. farmworkers—one-third of whom are U.S.-born citizens, according to the latest DOL survey. A fall in the H-2A wage will increase demand for H-2A workers, since employers can save significantly on labor costs if they hire them. As a result, it will become relatively more expensive to hire non-H-2A U.S. farmworkers. Employers will therefore reduce demand for U.S. farmworkers, putting downward pressure on their wages, with U.S. farmworkers seeing wage reduction of $2.7 to $3.3 billion in annual pay.

This would represent a shocking upward redistribution of income away from some of the country’s most underpaid and essential workers for the food system.

Under the new AEWR, H-2A farmworkers in year-round jobs would be paid tens of thousands of dollars less annually compared with what U.S. farmworkers earn now

The wage cuts from the AEWR described above currently apply only to H-2A farmworkers, who can only be employed in seasonal jobs. However, if the rider to make H-2A year-round goes into effect, farmworkers in year-round jobs will see the biggest pay cuts.

Table 2 lists a sample of some of the main year-round agricultural industries in major agricultural states, along with average annual employment, which together accounts for about 15% of the total year-round full-time equivalent jobs in agriculture. Table 2 shows how much farmworkers earned annually, on average in 2024 in those industries and states, and compares the annual earnings of farmworkers in 2024 with what H-2A workers would earn in 2026 if they had worked in the same jobs and had been paid the corresponding 2026 AEWR at skill level 1 for the entire year (40 hours per week for 52 weeks), minus the annualized amount that will be deducted from hourly wages for housing according to the 2026 AEWR.1

The final column in Table 2 shows a few examples that illustrate the difference between what year-round U.S. farmworkers in the selected industries earned in 2024 and what H-2A workers at skill level 1 would earn if they were paid the annualized AEWR in 2026. Table 2 shows that the reduction in wages for H-2A farmworkers in year-round jobs could range from an annual pay cut of nearly $19,000 for farmworkers on dairy farms in Wisconsin to a pay cut of over $44,000 for farmworkers on poultry and egg farms in Texas.

Outcomes such as these—in which farmworkers paid the 2026 AEWR would earn tens of thousands of dollars less than what U.S. farmworkers earned in major year-round jobs in 2024—are egregious and in violation of the spirit and letter of the AEWR and the H-2A statute, but will be the norm and allowed if the year-round H-2A provision in the rider becomes law. This would hurt some of the most vulnerable and lowest-paid workers in the U.S. labor market and create an almost unstoppable incentive for employers to replace their current farmworkers who now fill year-round jobs with H-2A workers who can’t easily switch employers or effectively complain when their wages are stolen and when they’re forced to work in unsafe conditions.

Table 2

The year-round H-2A rider with the new AEWR rule could triple the current size of the H-2A program and cause wages to drop sharply for farmworkers

The ultimate result of the new H-2A wage rule combined with making the H-2A program year-round would be a likely tripling of the size of the H-2A program to about 900,000 workers, which includes the complete decimation of job quality for the 410,000 jobs in agriculture that can provide stable year-round employment and sometimes a living wage for U.S. farmworkers.

How would this occur? The Trump DOL’s new wage rule estimates that the lower pay for farmworkers it institutes will encourage farms to rapidly increase hiring through the H-2A program, estimating that 515,000 H-2A workers will be employed in 2034. If those low wages remain in effect and the year-round H-2A rider becomes law and is renewed yearly (as the H-2B riders have been every year), employers are likely to ramp up hiring for year-round jobs until nearly all are filled by H-2A workers who can be paid extremely low wages and, because of their precarious immigration status, have little bargaining power or the ability to complain in the face of employer lawbreaking.

For context, the 410,000 H-2A workers in year-round jobs plus the estimated 257,500 year-round equivalent jobs done by H-2A workers in seasonal jobs (i.e., 515,000 H-2A workers employed in 2034 for six months out of the year), would equal 667,500 full-time equivalent jobs in agriculture, or roughly 42% of all annual average employment in agriculture.

Instead of ballooning the H-2A program, policymakers should create a pathway to citizenship for farmworkers to ensure their rights on the job

Policymakers and the public must reject the harmful and unjustified proposals coming from Trump and Congress to pay less to farmworkers who already live on the margins of society, and to keep more of them indentured through the H-2A program. This rider is another example that reveals the truth about the Trump administration’s immigration agenda: They have no real interest in protecting jobs or pay for American or “native-born” workers, only in giving employers what they demand.

Using H-2A, a problematic temporary work visa program—in which workers are virtually indentured to their employers and that accounts for most of the wage and hour violations that take place on farms—to fill permanent, year-round jobs should give pause to all members of Congress. It makes no sense, unless the goal is to keep the workers employed in those jobs from having equal rights and fair pay. If migrant workers are filling true labor shortages in permanent, year-round jobs, then those workers should always get lawful permanent residence (i.e., green cards) that puts them on a path to citizenship.

If members of Congress want a reliable, healthy, and stable farm labor force that can continue to produce food domestically for Americans, they should pass legislation that legalizes undocumented farmworkers and reforms the H-2A program so that all migrant farmworkers have equal rights, fair wages, and a quick path to permanent residence and citizenship. That’s the only way to ensure that the workers who sustain the food supply chain will be treated with the dignity and respect they deserve and that honors their contributions to the U.S. economy.

1. The amounts have not been adjusted for inflation. The 2026 AEWR provides two “skill levels” for farmworkers—which are set at specific percentiles along the distribution of OEWS wages surveyed. Skill level 1 is the 17th percentile while skill level 2 is the median of wages surveyed, which is also the 50th percentile. For this calculation, I am only calculating the wage differentials for H-2A workers in year-round jobs who are classified by employers at skill level 1, which DOL estimates will account for 92% of all H-2A workers.

December 1, 2025

Paul Buono
Chief, Business and Foreign Workers Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
5900 Capital Gateway Drive
Camp Springs, MD 20746

Re: Removal of the Automatic Extension of Employment Authorization Documents, CIS No. 2826-25; DHS Docket No. USCIS-2025-0271, RIN 1615-AD05 (October 30, 2025)

Chief Buono:

The Economic Policy Institute (EPI) submits this comment strongly opposing the October 30, 2025 Interim Final Rule (IFR) eliminating automatic extensions of Employment Authorization Documents (EADs). The 2025 IFR unlawfully reverses DHS’s nearly decade-long policy choice of providing automatic EAD extensions; ignores ongoing adjudication delays and economic evidence; disregards reliance interests that DHS itself recognized less than a year ago; rejects feasible alternatives; and relies solely on an unsupported security rationale all while unlawfully bypassing notice-and-comment procedures as required by the Administrative Procedure Act (APA). The result is a rule that will strip employees of their workplace rights, destabilize the workforce, disrupt employer operations by creating gaps in employment authorization with unknown durations, and inflict severe harm on workers and their ability to provide for their families solely due to the government’s bureaucratic processing delays. We urge DHS to withdraw the IFR in full.

EPI fully supports and endorses the written comments and recommendations submitted by the Asylum Seeker Advocacy Project (ASAP), which includes a number of examples of the IFR’s impact on ASAP members.

About EPI and organizational interest

The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank established in 1986 to include the needs of low- and middle-income workers in economic policy discussions. EPI conducts research and analysis on the economic status of working America, proposes policies that protect and improve economic conditions and raise labor standards for low- and middle-income workers—regardless of immigration status—and assesses policies with respect to how well they further those goals.

EPI has researched, written, and commented extensively on the U.S. system for labor migration, including on temporary immigration protections and EADs, and on labor standards enforcement for both the low-wage and professional workforce. EPI has also provided expert testimony about the U.S. immigration system to both the U.S. Senate and House of Representatives, as well as state legislatures.

The worker rights of millions are protected by EADs

For workers who lack a permanent or more durable immigration status, obtaining a temporary EAD can mean having enforceable workplace rights that an individual would otherwise not have. While all workers have some labor and workplace rights under U.S. law—regardless of immigration status—enforcing them in practice becomes virtually impossible because of the threat of deportation, which prevents workers who lack an immigration status or an EAD from calling out lawbreaking employers and demanding that they comply with the law, or from reporting workplace violations to labor enforcement agencies. But having protection from deportation through temporary administrative immigration protections like parole, Temporary Protected Status, deferred action—accompanied by an EAD—means that, in practice, workers can report workplace violations to government officials without fear of retaliation that can lead to deportation. It also means that a worker with an EAD can be employed by just about any employer and change jobs or employers, unlike migrant workers employed with temporary visas who can only be employed by the sponsor of their visa.

Altogether, nearly 5.6 million people in the U.S. held a temporary but precarious immigration status in 2024, including over 2 million people who are asylum-seekers. (see Table 1 below).

Table 1

While these statuses and protections are only a band-aid for a flawed immigration system that is deeply in need of reform,1 they have been shown to protect millions of workers from some of the worst forms of employer lawbreaking. Employers also greatly benefit from workers having a protective status and a work permit because it allows them to lawfully employ millions of people who would otherwise not be eligible to work, leading to billions in economic contributions to the U.S. economy and generating demand that stimulates growth.

While comprehensive data are limited, we know, for example, that in 2017 the top five industries for TPS beneficiaries from El Salvador, Honduras, and Haiti were construction, restaurants and food services, landscaping, child day care services, and grocery stores.2 Employers in these industries and many others are in danger of losing their current workforce and will be prohibited from legally recruiting millions of other workers. Just one example is the GE Appliance Park in Louisville, Kentucky, a unionized plant where nearly 200 employees received a letter from the administration terminating their status and work authorization.3 Overnight, GE lost 200 employees.

DHS ignores the value and impact of work authorization on the workforce

In the IFR, DHS does not estimate and consider the value and impact that EADs have on the workforce and economy. There are examples of existing research showing the important economic contributions that hundreds of thousands of migrants with temporary protections and EADs are able to make thanks to being work-authorized. For example, when the TPS population was approximately 354,000 in 2021, the American Immigration Council estimated that “TPS holders contributed more than $2.2 billion in taxes, including almost $1 billion to state and local governments,” as well as “held $8 billion in spending power.”4 Another estimate by Moriarty found that TPS-eligible individuals “annually contribute some $31 billion in wages to the national GDP.”5

Research has also quantified some of the contributions made by persons who have qualified for Deferred Action for Childhood Arrivals (DACA). DACA was created by DHS in 2012, and recipients are eligible for protections from deportation and EADs that are valid for two years and renewable. More than 835,000 persons have benefitted from DACA, and more than 500,000 were enrolled as of 2024.6 Svajlenka and Truong found that DACA recipient households “pay $6.2 billion in federal taxes and $3.3 billion in state and local taxes each year,” and “after taxes, these households hold $25.3 billion in spending power,” and that DACA recipient families “own 68,000 homes, making $760 million in mortgage payments and $2.5 billion in rental payments annually.”7

When it comes to measuring the workplace impact and economic benefits of being issued an EAD for the workers themselves, there are limited examples, but three are worth citing here. One is an annual survey of DACA recipients that was conducted in 2024 for the ninth time. The most recent survey, conducted by Wong et al. and published by the Center for American Progress, showed that DACA has been an essential tool to improve the economic and educational outcomes of recipients.8 In terms of the impact that deferred action and an EAD have had on the employment of DACA recipients: 59.1% of respondents moved to a job with better pay; 47.3% moved to a job with better working conditions; 47.5% moved to a job that “better fits [their] education and training”; 49.6% moved to a job that “better fits [their] long-term career goals”; 57.3% moved to a job with health insurance or other benefits; and 19.6% of respondents obtained professional licenses.

Wong et al. also measured the impact of DACA and EADs on wages, finding that “[d]ata from the past nine years show that DACA has had a significant and positive effect on wages: Recipients’ average hourly wage more than doubled from $11.92 to $31.52 per hour—an increase of 164.4 percent—after receiving DACA.” These significant wage increases are no doubt a result of the labor and workplace rights and stability that DACA recipients gain from having an EAD.

Orrenius and Zavodny examined the wage and employment impact of TPS9—which allows those who are eligible to also be granted an EAD. They looked specifically at migrants from El Salvador, finding that having TPS increased employment rates, and that less-educated Salvadoran men who were employed earned 13% more if they had TPS. They note that “As a whole, the results suggest that less-educated Salvadoran men who receive TPS are able to move into better jobs and become more selective about the jobs they hold, increasing their earnings but also their job search and unemployment incidence.”

One other analysis that assesses the wage impact of being issued an EAD comes from Kallick, which looks specifically at asylum seekers in New York and nationwide.10 Relying on previous methodologies for measuring the impact of a lawful immigration status being granted to unauthorized immigrants, Kallick estimates that asylum seekers who are granted EADs increase their wages by 10%.

While the relative benefits of precarious and temporary immigration protections and EADs to migrant workers and the broader economy are clear, it is important to note here that the protections and EADs are only temporary and will end if renewals are not approved, or if renewals are delayed. Thus, DHS through this IFR will intentionally hurt the economy and eliminate the economic benefits for workers and employers that EADs create, a fact that the IFR does not grapple with or address.

An alternative to the path that DHS has chosen of terminating temporary statuses and EADs would be if Congress provided these workers with a permanent immigration status like a green card—and the rights that accompany it—allowing them to have full, equal, and permanent workplace rights and to exercise them in practice. That, in turn, would lead to even higher wages and improved labor standards for all workers,11 not just those who newly obtain green cards. However, the current administration so far has shown no appetite for supporting Congress in the creation of even one new green card.

But in the meantime, EADs through tools like TPS, parole, and DACA can mean the difference between having rights on the job or being extraordinarily vulnerable to the worst abuses by employers. While the current administration has claimed they want to help U.S. workers, actions like the mass detention and deportation of millions of workers and canceling protections like TPS and parole, reveal they are willing to degrade conditions and standards for all workers, as well as kill jobs and shrink the economy, in order to carry out their extreme immigration enforcement agenda.12

If the IFR is not withdrawn, millions of workers will be more easily exploited by their bosses and driven into the informal economy. That, in turn, will reduce their tax contributions that support the social safety net and lower their wages significantly13—ultimately hurting U.S workers in low-wage industries and the U.S. economy writ large by driving down demand for goods and services. It will also leave employers without millions of reliable employees in industries like construction, hospitality, childcare, agriculture, food processing and production, and more.

DHS ignores significant reliance interests

The 2025 IFR also disregards the significant reliance interests that DHS itself reaffirmed less than a year ago when it issued a permanent 540-day automatic extension, and which have existed since the agency’s issuance of the 2016 Final Rule. For nearly a decade, USCIS has automatically provided an extension of some length to some groups of workers with expiring EADs.14 In the 2024 Final Rule, DHS invited stakeholders to rely on a permanent 540-day extension and explicitly sought comment on making the extension permanent to provide regulatory certainty and workforce stability.15 Employers and workers reasonably structured hiring, staffing, payroll planning, and employee retention around that assurance.

Additionally, the only reliance interests DHS barely acknowledges—but does not meaningfully consider—are those of migrants and their employers. Yet, DHS entirely failed to consider the reliance interests of other stakeholders who rely on regulatory stability preventing immigrant communities from suffering government-caused lapses in employment authorization. These other stakeholders include state, city, and local governments; entire regional economies; educational institutions; healthcare providers; legal and social service providers; and the broader public, among others.

DHS cannot now abruptly withdraw the permanent 540-day automatic extension without addressing these significant reliance interests. Doing so violates core administrative law principles.16 In short, DHS invited workers, employers, families, schools, service providers, and communities to rely on regulatory stability, then pulled the rug out from under them without explanation. DHS failed to properly consider these significant reliance interests when issuing the 2025 IFR.

DHS fails to consider feasible alternatives as required by the APA

DHS fails to meaningfully consider feasible, less disruptive alternatives, in violation of the APA. 

Consecutive EADs. For instance, DHS claims that “proper planning” by renewal applicants could ensure no lapses in work authorization, yet this fails to recognize that DHS does not issue consecutive EADs. When individuals file well in advance of expiration, USCIS routinely issues overlapping validity periods rather than tacking the new approval onto the end of the existing authorization. As a result, early filers lose usable work-authorization time, forcing them into an ever-accelerating renewal cycle where they must apply earlier and earlier at significant personal and financial cost merely to maintain continuous work authorization. Filing fees, legal fees, time off work to prepare filings, and the emotional and economic strain of constant renewal planning make this approach untenable. If DHS truly believed early filing was the solution, it was required to consider—and explain why it rejected—the obvious alternative of issuing consecutive EAD validity periods so that applicants could file early without losing work authorization time and money. This straightforward fix would allow individuals to apply far in advance, provide USCIS a longer adjudication window, and preserve the full period of authorized employment. DHS’s failure even to address this option underscores the inadequacy of its “proper planning” rationale and confirms that the agency did not meaningfully consider reasonable, less disruptive alternatives.

Concurrent vetting. Nor does DHS explain why it cannot simply continue to conduct vetting during the renewal process and deny renewal of employment authorization if “potential hits of derogatory information” arise—a process it already uses.17 With or without the automatic extension, the individual remains in the United States; the only question is whether they are forced out of lawful employment while being vetted. In other words, DHS already has a system that protects security while letting people keep working, and it has not explained why it cannot keep using it.

Secure paper. DHS’s concern that its own receipt notices are printed on “non-secure” or “plain” paper ignores an obvious solution: printing the extension notices on secure paper.18 Rejecting straightforward, commonsense solutions in favor of a rule that causes sweeping economic harm and predictable worker displacement is the definition of arbitrary and capricious decision-making.

DHS’s use of an Interim Final Rule violates APA requirements

DHS made the 2025 IFR effective immediately, without providing the notice or opportunity to comment required by the APA. Thus the agency’s use of an interim final rule was unlawful.

First, DHS has not satisfied the “meticulous and demanding” standard for invoking the APA’s “good cause” exception.19 That narrow exception allows an agency to bypass notice and comment only where it “for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”20 While DHS claims that notice and comment would be impracticable and contrary to the public interest, it relies almost entirely on the unsupported security rationale discussed above, along with stating it is “self-evident” that more workers would “rush” to apply for EAD renewals before the rule took effect.21 Again, DHS has not provided evidence of any security risks caused by automatic extensions.22 DHS therefore cannot satisfy the good cause exception to avoid notice-and-comment rulemaking.

Second, the 2025 IFR improperly relies on the exception for normal rulemaking involving the “foreign affairs function of the United States.”23 This exception, too, comes with a “high bar.”24 In particular, courts have warned against “[t]he dangers of an expansive reading of the foreign affairs exception” in the immigration context, where inevitable “incidental foreign affairs effects” would “eliminate[] public participation in this entire area of administrative law.”25 DHS cannot meet that high bar here, as the potential effects on international relations that it puts forward are all speculative, tenuous, or otherwise reliant on unsupported claims of security risks.26

Conclusion and recommended action

For all of these reasons, DHS should withdraw the 2025 IFR in its entirety and reinstate the permanent 540-day automatic extension. The IFR contradicts DHS’s statutory mandate, its own 2016 and 2024 Final Rules, and the factual and economic record. It rests on speculation, ignores constitutional concerns, and will cause predictable, major harm to worker rights and workers themselves, as well as families, employers, and the broader economy—all due to bureaucratic processing delays caused by the government alone.

Comment submitted by:

Daniel Costa|
Director of Immigration Law and Policy Research
Economic Policy Institute

Endnotes

1. Daniel Costa, Josh Bivens, Ben Zipperer, and Monique Morrissey, The U.S. benefits from immigration but policy reforms needed to maximize gains: Recommendations and a review of key issues to ensure fair wages and labor standards for all workers, Economic Policy Institute, October 4, 2024.

2. Robert Warren and Donald Kerwin, A Statistical and Demographic Profile of the US Temporary Protected Status Populations from El Salvador, Honduras, and Haiti, Center for Migration Studies, 2017

3. Keely Doll, “Letters warn nearly 200 GE Appliances workers to leave U.S. as immigration program ends,” Louisville Courier Journal, April 4, 2025.

4. American Immigration Council, The Contributions of Temporary Protected Status Holders to the U.S. Economy (fact sheet), September 19, 2023.

5. Andrew Moriarty, “Temporary Protected Status (TPS): 5 Things to Know,” Policy Brief, FWD.US, February 29, 2024.

6. President’s Alliance on Higher Education and Immigration (President’s Alliance), Breakdown of Dreamer Populations—Both with and Without DACA, Updated May 23, 2024.

7. , Nicole Svajlenka and Trinh Q. Truong, “The Demographic and Economic Impacts of DACA Recipients: Fall 2021 Edition,” Center for American Progress, November 24, 2021.

8. Tom Wong, Ignacia Rodriguez Kmec, Diana Pliego, Karen Fierro Ruiz, Silva Mathema, Trinh Q. Truong, and Rosa Barrientos-Ferrer, 2023 Survey of DACA Recipients Highlights Economic Advancement, Continued Uncertainty amid Legal Limbo, Center for American Progress, March 25, 2024.

9. Pia Orrenius and Madeline Zavodny, “The Impact of Temporary Protected Status on Immigrants’ Labor Market Outcomes,” Federal Reserve Bank of Dallas Working Paper no. 1415, December 2014.

10. David Dyssegaard Kallick, “’Let Us Work’: The Wage Gain When Asylum Seekers Gain Work Authorization,” Immigration Research Initiative, September 7, 2023.

11. Daniel Costa, Josh Bivens, Ben Zipperer, and Monique Morrissey, The U.S. benefits from immigration but policy reforms needed to maximize gains: Recommendations and a review of key issues to ensure fair wages and labor standards for all workers, Economic Policy Institute, October 4, 2024.

12. See for example, Ben Zipperer, Trump’s deportation agenda will destroy millions of jobs: Both immigrants and U.S.-born workers would suffer job losses, particularly in construction and child care, Economic Policy Institute, July 10, 2025.

13. See for example, Carl Davis, Marco Guzman, and Emma Sifre. 2024. Tax Payments by Undocumented Immigrants, Institute on Taxation and Economic Policy, July 30, 2024.

14. See 2016 Final Rule, 81 Fed. Reg. at 82,455. 

15. 2024 Final Rule, 89 Fed. Reg. at 101,230. 

16. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 30 (2020) (agency must meaningfully consider reliance interests when abandoning prior policy).

17. 2025 IFR, 90 Fed. Reg. at 48,804 (“If the application is denied, the automatically extended employment authorization and/or EAD generally is terminated on the day of the denial.”); id. at 48,806, 48,808–10 (citing concerns about “potential hits of derogatory information”).

18. See 2025 IFR, 90 Fed. Reg. at 48,809–10, 48,817 (concerns about automatic extension being memorialized on “non-secure” paper).

19. Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014) (citation omitted). 

20. 5 U.S.C. § 553(b)(3)(B).

21. 2025 IFR, 90 Fed. Reg. at 48,813.  

22. Cap. Area Immigrants’ Rts. Coal. v. Trump, 471 F. Supp. 3d 25, 46 (D.D.C. 2020) (good cause exception not satisfied where agencies only provided a single example of potential adverse consequences and “offer[ed] no other data or information that persuasively supports their prediction of a surge” in border crossings before rule took effect). 

23. 5 U.S.C. § 553(a)(1). 

24. Cap. Area Immigrants’ Rts. Coal. v. Trump, 471 F. Supp. 3d 25, 55 (D.D.C. 2020). 

25. City of New York v. Permanent Mission of India to United Nations, 618 F.3d 172, 202 (2d Cir. 2010). 

26. 2025 IFR, 90 Fed. Reg. at 48,814. 

TO: Brian Pasternak, Administrator, Office of Foreign Labor Certification

Employment and Training Administration
Department of Labor
200 Constitution Avenue NW
Room N-5311
Washington, DC 20210

RE: Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, Interim Final Rule, request for comments, Employment and Training Administration, 20 CFR Part 655, DOL Docket No. ETA-2025-0008, RIN 1205-AC24 (October 2, 2025)

Dear Administrator Pasternak:

This document in submitted in response to the Department of Labor’s (DOL) Employment and Training Administration (ETA) request for public comment on its Interim Final Rule (IFR) entitled “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States,” which proposes to amend the methodology for setting the Adverse Effect Wages Rate (AEWR) for the H-2A temporary agricultural worker visa program.

The Economic Policy Institute (EPI) strongly opposes the IFR and urges DOL to rescind the IFR and revert back to the previous AEWR methodology, or make amendments to the methodology as described herein. We believe the updated AEWR methodology and the housing deduction in the IFR will negatively impact both U.S. farmworkers and migrant farmworkers recruited through the H-2A program, and worsen conditions in the farm labor market.

EPI fully supports and endorses the written comments and recommendations submitted by Farmworker Justice, on behalf of a multitude of organizations that represent migrant and seasonal farmworkers, including H-2A workers. EPI is a signatory listed on the comments submitted by Farmworker Justice and incorporates those comments and recommendations by reference into this comment. The comments submitted herein should be considered an addendum to those comments, which provide additional analysis to support the opposition of DOL’s updated AEWR methodology.

EPI also supports and endorses the written comments and recommendations submitted by the Migration that Works coalition, which EPI is a founding member of.

About EPI

The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank established in 1986 to include the needs of low- and middle-income workers in economic policy discussions. EPI conducts research and analysis on the economic status of working America, proposes policies that protect and improve economic conditions and raise labor standards for low- and middle-income workers—regardless of immigration status—and assesses policies with respect to how well they further those goals.

EPI has researched, written, and commented extensively on the U.S. system for labor migration, including in particular the H-2A and H-2B programs and other temporary work visa programs, as well as on farm labor issues, including labor standards enforcement in agriculture. EPI has also provided expert testimony about work visa programs and farm labor to both the U.S. Senate and House of Representatives, as well as state legislatures.

Given the numerous reports from advocates, news investigations, and even government audits over the years that have revealed how deeply flawed the H-2A program is when it comes to protecting the rights of both migrant farmworkers and U.S. farmworkers, EPI is concerned that DOL would take such an audacious action to lower wages for H-2A farmworkers and U.S. farmworkers, who are already some of the lowest-paid workers in the entire U.S. economy.

Farmworkers earned some of the lowest wage rates in the entire U.S. labor market in 2024

Before discussing the details of DOL’s new AEWR methodology in the IFR, it is important to discuss and contextualize the wages of the 2.2 million farmworkers in the United States—something DOL fails to adequately do.1 Roughly 350,000 of them are crop farmworkers employed through the H-2A visa program.2 DOL’s National Agricultural Workers Survey (NAWS) shows that two-thirds of non-H-2A crop farmworkers are foreign-born, and that one-third are U.S.-born citizens, all of whom have a significant stake in the IFR.3

The agricultural industry has made numerous claims about skyrocketing and unsustainable wage growth for farmworkers, some of which DOL echoes in the IFR, and the industry has lobbied for federal actions by the executive branch and Congress to artificially restrain wage growth in the industry. As this comment will discuss, most of these claims are not supported by the available evidence.

The most reliable data on farmworker earnings comes from the U.S. Department of Agriculture’s (USDA) National Agricultural Statistics Service (NASS), which conducts the Farm Labor Survey (FLS), the results of which were, until recently, published twice a year in USDA’s Farm Labor report series, with data reported for reference weeks in January, April, July, and October.4 On August 28, 2025, USDA announced that it would discontinue its data collection program and reports, including the FLS,5 thus making 2024 the final full year for which FLS data are available. Before October 2025, FLS data was used by the U.S. Department of Labor (DOL) to set the Adverse Effect Wage Rate (AEWR) for most migrant farmworkers hired in the H-2A program. DOL based the AEWR on the average hourly earnings of nonsupervisory field and livestock workers, as reported by farm operators and by region. DOL used the FLS data to set H-2A wages so they reflect current real-world trends in the farm labor market.

The FLS data up to 2024 data show that while there have been some documented real increases over the past three decades, they have not been unreasonably large increases, and they have occurred in a broader context where the wages of farmworkers are extremely low by any measure, even when compared with the hourly earnings of comparable non-farm workers, as well as when compared with average wages for all workers in the United States, and workers with the lowest levels of education (see Figure A).

Figure A

In 2024, the average earnings of all nonsupervisory farmworkers (i.e., combined field and livestock workers in the FLS) was $18.12 per hour. The average farmworker hourly wage in 2024 was just half (52%) of the average hourly wage for all workers in the United States in 2024, which was $34.27 per hour.6

The average hourly wage for production and nonsupervisory non-farm workers—the most appropriate cohort of nonagricultural workers to compare with farmworkers—was $27.56, according to the Current Employment Statistics from the Bureau of Labor Statistics (BLS). In other words, farmworkers earned just under 60% of what production and nonsupervisory workers outside of agriculture earned, or three-fifths. In 2024, the farmworker wage gap remained substantial and virtually unchanged from the previous three years. USDA’s ERS shows that between 1990 and 2023, the gap slowly narrowed from 50% to 60% and has described the wage gap between farmworker and nonfarm worker wages as “still substantial, but it is slowly shrinking.”7 

Farmworkers have very low levels of educational attainment and their wages are comparable to workers in other industries with similar educational attainment. According to the NAWS, 27% completed the 10th, 11th, or 12th grade, and only 16% completed some education beyond high school.8 Farmworkers earn the same or less than the two groups of nonfarm workers with the lowest levels of education in the United States: Nonsupervisory farmworkers earned 10 cents an hour more than the average wage earned by workers without a high school diploma ($18.02), but earned $5.61 less per hour than the average wage earned by workers with only a high school diploma ($23.73).

The AEWR paid to H-2A workers varies by state. In 2024, it ranged from $14.53 to $19.75 per hour. That means that for many H-2A workers, including in some of the biggest states for H-2A employment, the wage they earned was even lower than the national average wage for all nonsupervisory farmworkers in 2024—meaning the gap between what many H-2A farmworkers and non-farm workers earn is even wider.

The AEWR was higher than the national average farmworker wage of $18.12 in 14 states, but in the other 35 states for which DOL published an AEWR, it was lower than the national average. In Florida and Georgia—the top two states for H-2A employment, and where nearly a quarter of all H-2A jobs were located in 2024, workers were paid much less than the national average wage. The AEWR in Florida was $14.77 per hour, $3.35 less than the national average farmworker wage. And Georgia was tied with South Carolina for the second-lowest overall state AEWR, at $14.68 per hour, which was $3.44 less than the national average wage.

To reiterate, the nearly one-quarter of all H-2A farmworkers employed in Florida and Georgia in 2024 were paid at least $3.35 less per hour than the national average wage for farmworkers. And H-2A farmworkers in most other states were also paid less than the national average wage for farmworkers. None of the H-2A wages rates, not even those with the highest AEWRs, are exorbitant salaries that can be cut without harming farmworkers and their livelihoods, contrary to what some agribusiness representatives want the public and lawmakers to believe.

DOL’s claim about the increase in the AEWR to justify cutting wages ignores the fact that AEWR wage growth over the past 20 years has been almost identical to wage growth for other low wage workers

The value and the rate of increase of the AEWR has become a hot-button issue and many claims about its impact have been made over the years by representatives of industry. For example, the American Farm Bureau has called the previous AEWR methodology “a blow to growers” and AmericanHort said the AEWRs were “steep.”9

Many of the claims by industry advocates and even DOL about year-to-year AEWR increases often do not adjust for inflation, which overstates the actual increase in terms of its dollar value. This is a basic mistake that misleads—and it misleads particularly during times of relatively rapid inflation, like the post-pandemic period. DOL echoes these misleading claims from industry advocates and makes their own in the preamble to the October 2025 IFR, making the year-over-year increases in the AEWR seem greater than they truly are. DOL notes that the national average AEWR has more than doubled in nominal terms over 20 years from $8.56 in 2005 to $17.74 in 2025.10 But DOL’s own CPI Inflation Calculator adjusts the value of $8.56 in September 2005 to $13.99 in September 2025, resulting in a real increase of just over one quarter over two decades, at 26.8%, which over that period averages out to just 1.2% per year.

If we examine the same period for other low-wage workers in nominal terms, we also see that wage growth for farmworkers paid the AEWR is in line with—nearly identical to—nominal wage growth for other low wage workers in the United States. Figure B shows annualized wage growth for workers paid at the 20^th percentile wage, as well as the median wage for workers with less than a high school education—both of which are good measures for typical low-wage workers. Both saw annual nominal wage growth that was at 3.5% between 2005-2025, the period that DOL identifies. Farmworkers earning the AEWR over that same period saw annualized wage growth of 3.7%, nearly identical to other typical low-wage workers. Thus, DOL’s main example of runaway wage growth for farmworkers does not hold water.

Figure B

The 1% to 2% real annual wage growth of the AEWR over the past 15 years is solid but not unsustainable, and still making up for lost ground

This section examines the real value of the AEWR over the past 15 years. We do not suggest that we know exactly what the appropriate AEWR for each state should be or suggest that changes in the AEWR have no impact on farmers, or make any other bold claims about the AEWR. This section is simply an evidence-based look at the value of the AEWR over time, as a response to claims by industry and DOL that the AEWR has risen quickly and too sharply.

As noted in the previous section, alarmist claims about wage growth for the AEWR are numerous. See this comment from Craig Regelbrugge from AmericanHort, who noted that “growers in Delaware, Maryland, New Jersey, and Pennsylvania will take the biggest hit, with a 9.6% increase” in the AEWR from 2021 to 2022, with California’s increasing “more than 8%.”11 Regelbrugge calculates these increases in nominal terms—but what do the increases look like after one adjusts for inflation?

While the percentage increase from 2021 to 2022 was in fact the largest in the states of Delaware, Maryland, New Jersey, and Pennsylvania, after adjusting for inflation, the increase was just 2.3% in those states. A year-over-year real hourly average wage increase of 2.3% is not even large enough to be consistent with the wage gains that could be reasonably expected for an occupation where employers have argued that severe labor shortage exist. If there are in fact labor shortages, it is reasonable to expect wages to rise; that’s simply Economics 101. And a shortage means by definition that the wage increase must be significantly more rapid than would be sustainable and expected in the long-run. Over the pandemic business cycle (between 2019 and 2024) economy-wide productivity growth has averaged 2.1% per year—and this should be the benchmark for real wage growth that is sustainable in the long-run. A raise of 2.3% for a given sector is hardly one that unambiguously signals a severe labor shortage, especially considering how low H-2A wages are relative to other occupations, and how underpaid farmworkers have been for decades.

It would take literally decades of AEWR increases exceeding productivity growth by this amount before H-2A workers had made up the amount these wages had lagged economy-wide average wage growth in recent decades. And in California, what did the “more than 8%” AEWR increase that Regelbrugge cites amount to after adjusting for inflation? H-2A farmworkers in California only saw a real increase of less than one percent (0.9%) in 2022.12 Compare this to food inflation, which was 9.95% in 2022.13 Arguably, the food sector generally was seeing potential income gains to easily cover the AEWR increases. Not all of the income gains went to the farm operators that employ farmworkers, of course, but presumably they received enough of a share that would have covered a wage increase of 1% to 2%.

Now let’s turn to the AEWRs in all states over the past 15 years up to 2025. Table 1 shows the Adverse Effect Wage Rates for H-2A farmworkers in all states with an AEWR between 2011 and 2025, in values that have been adjusted to constant 2025 dollars, and shows the calculated total real change in terms of dollar value, as well as the real total percentage change, and the annualized real percentage change per year, from 2011 to 2025. The AEWRs listed are ranked by number of H-2A workers, using the number of workers certified from DOL as a proxy for the number of workers.

Table 1

The top five states for H-2A employment together account for half of all H-2A employment nationwide (49.9%). The table shows that in Florida, the biggest state for H-2A farmworkers—where 12.3% of H-2A farmworkers are employed—the value of the AEWR increased by a total of $3.07 between 2011 and 2025 (in constant 2025 dollars); that’s a total increase in value of 23.4% over 15 years. The average annual growth was 1.5% over the 2011-25 period. In Georgia, the second-biggest state for H-2A employment—where 11.3% of H-2A farmworkers are employed, the value of the AEWR increased by $3.45 over the past 15 years, averaging an increase of 1.7% per year.

The largest increase in the value of the AEWR (in constant 2025 dollars) was in California, which accounts for nearly 10% of H-2A employment. In California, the total real value of the AEWR increased by $5.69 over the past 15 years; a total percentage increase of 39.9%, which amounts to annualized percentage increase of 2.4% per year. 

Washington, the next biggest state for H-2A employment, was one of 10 states that saw wage growth that was above 2% per year for 2011-25, growing at 2.2% per year. The fifth biggest H-2A state, North Carolina, increased by $3.28 over the last 15 years, a total increase of 25.5%, growing annually at an average of just 1.6% per year.

For the increases that occurred in the Pacific states, it is likely that those larger increases were driven by increases in the states’ minimum wage laws, which then fed into the FLS. The state minimum wages in California and Washington are more than double the minimum wage of $7.25 in Georgia and more than $2 more than the state minimum wage in Florida.

In total, as the table shows, there were 39 states where the annual average real increase in the AEWR was less than 2%. There were 10 states where annual real wage growth was 1.6% to 1.9%, 14 states had annual wage growth that was 1.5%, and in 15 states, wage growth was 1.2% to 1.4%. The average yearly real percentage increase for each state over the 15-year period was 1.6%, and if weighted by the number of H-2A workers in the state, 1.7%.

The annual average real wage growth of 1.2% to 2.2%, with a weighted average of 1.7%, as Table 1 shows—as well as the 1.9% annual real wage growth in the national farmworker wage over the past decade according to USDA survey data which DOL cites14 —represents decent wage growth for farmworkers and suggests a relatively tight labor market for farmworkers. However, it represents little progress for farmworkers who are in an occupation where they are exempted from key labor laws and wage and hour standards, and where they have earned 50% to 60% of the wage earned by comparable nonsupervisory workers outside of agriculture (see Figure A and discussion above). It would take many more years of faster wage growth for farmworkers to begin to approach even three-fourths of what nonsupervisory workers earn outside of agriculture.

The IFR violates the APA because there is no emergency and DOL did not consider alternative policies, methodologies, and key stakeholders

DOL has violated the Administrative Procedure Act (APA) with this IFR, both because (1) it has unjustifiably asserted an emergency that necessitates the issuance of an IFR, rather than the usual APA process of issuing a notice of proposed rulemaking, receiving comments from the public, and then considering public input before publishing a final rule; and (2) because DOL did not consider alternative policies and methodologies or assess their impact, or adequately discuss the impact on key stakeholders other than farm employers.

DOL has bypassed the APA’s requirements by claiming that there is good cause to do so. An agency may only bypass the APA’s procedural requirements only if it “for good cause finds … that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest,”15 and “the good-cause inquiry is “meticulous and demanding.”16 Courts have “repeatedly made clear that the good cause exception ‘is to be narrowly construed and only reluctantly countenanced.’”17

DOL claims that there is an emergency labor shortage in agriculture that threatens the American food supply, and that without the IFR, farm operators will be harmed and food prices will spike. However it is clear that DOL could have considered alternative AEWR methodologies that could have been implemented quickly and kept farm wages stable, rather than issuing an IFR that leads to the massive wage cuts for H-2A farmworkers that DOL estimates will result. Even if we accept DOL’s claim that there is good cause for an emergency IFR—to the extent that one might exist—it would be an emergency that is entirely of the administration’s own making. DOL notes that the administration’s immigration enforcement efforts will remove many farmworkers, leaving farm operators with a shortage of available workers, which will cause food prices to spike. Did the administration consider slowing down or ending immigration enforcement efforts on farms, in order to prevent food prices from surging and to avoid reducing the supply of available labor? Did the administration consider providing work authorization to current farmworkers who lack an Employment Authorization Document (EAD), or restoring and expanding temporary immigration protections like parole, Temporary Protected Status, and deferred action, as current law permits, to maintain or even increase the supply of U.S. farmworkers? (While these measures would be the purview of DHS, DOL could consult with DHS and the White House on these measures.)

Another fact DOL has pointed to, to justify the emergency nature of the IFR, is the discontinuation of USDA’s Farm Labor Survey (FLS). Again, this is an emergency of the administration’s own making and could have been avoided. Ending the FLS was abrupt, ill advised, and no legitimate justification was provided for it. But even in the face USDA discontinuing the FLS, DOL could have continued to use the 2025 AEWR rates while it crafted a new AEWR methodology and notice of proposed rulemaking to take input from stakeholders. Or it could have adjusted the 2025 AEWRs upward by the estimated amount that the Congressional Budget Office expects for inflation from 2025 to 2026, or the average AEWR inflation over the last five or ten years.

DOL also fails to adequately consider the true costs of driving down wages and working conditions for U.S. farmworkers standards. Not only will the IFR hurt the ability of U.S. farmworkers to feed themselves and their families, it will hurt rural communities in both Democratic and Republican-controlled states, negatively impact economic activity, and drive down wages and working conditions for low-wage workers in a wide range of occupations. It will also impose costs on labor unions by making it harder to organize and bargain, and make more difficult for advocacy groups to assist both migrant and U.S.-born farmworkers to assert their workplace rights. These costs must be estimated and considered by DOL before implementing the new AEWR methodology and the massive wage cuts it will impose.

The new AEWR methodology violates the H-2A statute because it ignores the adverse impacts that will result for U.S. farmworkers

DOL notes in the IFR, in the section titled “Need for Regulation,” that “With illegal border crossings at record lows—agricultural employers, who have historically been incentivized to rely on [unauthorized immigrant farmworkers] because of high AEWRs mandated to use the H-2A program, will experience economic harm caused by mounting labor shortages.” This is the main justification offered to justify the substance of the updated AEWR methodology.

In the IFR’s introduction, DOL cites 8 U.S.C. §1188(a)(1), the statutory section stating that before the U.S. Department of Homeland Security (DHS) can approve a petition for an H-2A workers, DOL must assess and certify that:

(A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and

(B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

However, subsection (A) is ignored via DOL’s blanket and evidence-free assertion that not enough U.S. workers will apply for farm jobs, and nowhere in the IFR does DOL discuss subsection (B), by assessing or estimating whether the IFR will “adversely affect the wages and working conditions of workers in the United States similarly employed.” In fact, U.S. farmworkers are not treated as stakeholders in the IFR and the impact on their wages and working conditions are entirely ignored.

These omissions alone invalidate the IFR and justify that it be canceled and rescinded.

DOL does not explain how lowering wages for H-2A workers and significantly expanding the program—as DOL estimates will occur, to the tune of wage transfers of $24 billion from workers to employers and an increase of 132,000 H-2A workers in the H-2A program—will not adversely affect U.S. farmworkers. In fact, it is clear and obvious that lowering wages for 10% to 15% of the crop workforce comprised of H-2A workers to far below current average wage rates will put downward pressure on the wages of all farmworkers, including U.S. farmworkers, and make farm jobs less attractive to available U.S. workers. Instead of grappling with this basic reality, DOL makes a blanket statement that “qualified and eligible U.S. workers will not make themselves available in sufficient numbers.” Perhaps DOL is attempting to discourage U.S. farmworkers from applying for farm jobs by lowering overall wage rates—and that will in fact be the result of the new AEWR methodology in the IFR. However, there is little evidence to support the assertion that there are not sufficient U.S. workers to fill seasonal farm jobs. In fact, the vast majority of the 2.2 million agricultural workers hired by farm operators reside in the United States, and one-third of crop farmworkers are U.S.-born citizens according to DOL’s own estimates in the NAWS.18

Statements from other agencies in the administration also undermine DOL’s claim. In June, USDA Secretary Brooke Rollins went so far as to say that despite the “mass deportations” which DOL predicts in the IFR will result in too few U.S. workers available to fill seasonal farm jobs, Rollins said that the administration would “move the [farm] workforce towards automation and 100 percent American participation,”19 adding that:

There’s been a lot of noise in the last few days and a lot of questions about where the president stands and his vision for farm labor… There are plenty of workers in America.20

Congress sought specifically to protect U.S. farmworkers from adverse effects when establishing the H-2A program and DOL cannot ignore them. The H-2A statute does not give DOL flexibility to make a blanket determination that U.S. workers will no longer be interested in farm jobs and therefore disregard the impact that the H-2A program will have on wages of similarly employed U.S. workers. The rule is therefore inconsistent with the law and should be rescinded.

The new AEWR methodology violates the H-2A statute because it will adversely impact the wages and working conditions of farmworkers, including U.S. farmworkers

Between 2010 and September 30, 2025, the AEWR was based on a survey of farm operators conducted by USDA, commonly referred to as the Farm Labor Survey (FLS) which set AEWR wage rates for each state based on the regions surveyed by the FLS. While far from perfect, it was the best data set available on the wages of directly hired farmworkers in the United States. On August 28, 2025, USDA abruptly announced that it was discontinuing the FLS.21 A month later, on October 2, 2025, DOL issued the IFR laying out a new AEWR based on data from a different data set, the DOL’s Occupational Employment and Wages Statistics (OEWS) survey. In short, the OEWS is an inferior data set for agriculture and is not a valid survey for setting farmworkers’ wages, in part because it only surveys nonfarm employers—meaning farm labor contractors and other staffing firms that send farmworkers to different farms and pay them roughly only three-fourths of what farmworkers are paid when they are directly hired by farm operators.22

The updated AEWR cuts wage rates dramatically and creates two artificial “skill levels” for each state which set H-2A wages at the 17^th percentile of wages surveyed (skill level 1) and at the 50^th percentile (skill level 2), which is the median of wages surveyed, based on five combined occupations DOL has determined are relevant in the OEWS. DOL estimates that 92% of H-2A workers will be paid at skill level 1 and 8% at skill level 2. DOL’s IFR is fairly explicit about its desire to lower wages for H-2A farmworkers in order to benefit farm employers and increase H-2A hiring, and the administration’s move to eliminate the FLS and DOL’s move to substitute it with the OEWS appears to be a key action taken to achieve that.

In addition, DOL eliminates the previous requirement that employers pay for 100% of housing costs for H-2A workers. Currently, H-2A employers are required to provide housing for workers if they would not reasonably be able to return to their residences on a daily basis. This is an important requirement of the program given that H-2A workers are so low-paid that they cannot reasonably be expected to pay for their own housing, and that many farms where H-2A workers are employed are in remote areas, and not located close enough to a supply of affordable, accessible housing that still allow workers to report for duty for long hours in the fields. For years, news reports and worker advocates have documented many of the substandard conditions in employer-provided housing for farmworkers.23 However, instead of improving these problems, the AEWR would no longer require employers to pay for 100% of housing costs and implements a new deduction to let farm owners take deductions for housing out of H-2A workers’ paychecks—sometimes as much as nearly one-third of their hourly pay (up to 30%). This will harm farmworkers and reverberate across the industry.

In total, between wage cuts and housing deductions, DOL estimates that over $1.7 billion will be transferred from H-2A workers’ pockets back to farm employers under the new wage rule in 2026, amounting to $24 billion over the next ten years as the program grows to over 500,000 jobs, as DOL predicts will occur. This would represent a shocking upward redistribution of income away from some of the country’s most essential workers for the food system and its most underpaid. All of these impacts clearly violate the H-2A statute’s prohibition on “adversely affect[ing] the wages and working conditions of workers in the United States similarly employed,” and the lower wage rates will make it impossible for DOL to determine whether or not there are sufficient U.S. farmworkers “who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved” in H-2A job orders.

New AEWR based on OEWS data will result in $4.4 to $5.4 billion in wages being transferred annually from farmworkers to farm operators at the current size of the H-2A program

We believe the DOL’s estimates are incomplete because they fail to fully consider the wage impacts of the new AEWR, by not considering alternative methodologies and other scenarios that may result. For instance, DOL did not consider the impact on state minimum wage rates and whether the AEWR housing deduction may conflict with state laws, and DOL did not estimate the impact that a massive wage cut for H-2A farmworkers will have on U.S. farmworkers. In this section we present new estimates that we hope will inform the public and DOL as to the true impact of the October 2025 AEWR. They should be considered low-end estimates because the IFR also permits farm operators to pay H-2A workers the AEWR for duties associated with higher-paying non-farm jobs for up to 50% of their work hours. This will put downward pressure on a number of occupations like construction and truck driving, but we have not attempted to calculate those losses to workers, and neither has DOL. 

The IFR will significantly reduce the wages paid to H-2A workers. Weighted across their total weeks worked by state according to 2024 H-2A disclosure data from DOL’s Office of Foreign Labor Certification,24 the average AEWR set for 2025 was $17.43. The rule, however, proposes a two-tiered wage structure with far lower wages for 2026. The average skill level 1 and skill level 2 wages would be $13.70 and $17.22, respectively, even without housing deductions. With housing deductions, the average level 1 and level 2 wages would be $11.78 and $15.30. 

In many cases, the new state AEWR wages are low enough to fall below the wage rates set by state minimum wage laws, with the housing deduction lowering it even further, and in some states, the AEWRs will fall below the state minimum wage only after housing deductions are subtracted. In all those cases, the state minimum wage becomes the AEWR. As of yet, it is unclear how states will react to workers being paid below the state minimum after the housing deduction, and what guidance the federal government will provide with respect to it. For example, in Connecticut, the 2026 skill level 1 H-2A wage is $15.93, but the 2026 state minimum wage will be $16.94. If the state fully enforces its minimum wage and prohibits pay rates from falling below the state minimum, regardless of the Connecticut housing deduction of $2.06, then the lowest wage an H-2A worker would be paid legally is $16.94. But if Connecticut or federal guidance allows the AEWR minus the housing deduction paid to workers to go below the state minimum wage, then an H-2A worker in Connecticut could be paid as low as $14.88 per hour (i.e. the state minimum wage minus the housing deduction). 

It is possible that some states will take the position that the hourly wage rates paid to H-2A workers may not go below the state minimum after subtracting the housing deduction, while some states may allow the deduction, arguing that the federal regulation setting the AEWR supersedes the state minimum wage law. The agricultural industry is likely to argue the latter, and the issue may end up in multiple state and federal courts. As a result of this uncertainty, our estimates consider both state minimum wage scenarios.

The first row of Table 2 estimates the annual pay losses for H-2A workers in 2026 under the IFR, assuming, as DOL does, that 92% of H-2A workers would be paid the skill level 1 wage. If state minimum wages were fully enforced and do not permit the hourly AEWR paid to workers to go below the state minimum wage, then H-2A annual wages would fall by $1.7 billion in 2026, or 25.8%. If state minimum wages were not fully enforced and the housing deduction drops the AEWR below the state minimum wage rates, the losses would be larger: a $2.1 billion or 31.5% annual pay loss. Different states may treat the AEWR and state minimum wage differently; if some states prohibit and some permit the housing deduction to be less that the state minimum wage, then the total amount of annual pay losses would fall somewhere in between those two amounts. 

Table 2

Reducing the AEWR for H-2A workers will also lower wages for U.S. farmworkers—one-third of whom are U.S-born citizens, according to DOL’s latest NAWS survey.25 A fall in the H-2A wage will increase demand for H-2A workers, since employers can save significantly on labor costs if they hire them. As a result, it will become relatively more expensive to hire non-H-2A U.S. farmworkers. Employers will therefore reduce demand for U.S. farmworkers, putting downward pressure on their wages.

This is not hypothetical: Rutledge et al. found that a 10% increase in the AEWR caused an almost 2.8% increase in the wages of U.S. farmworkers.26 With those estimates, the authors estimated that a one-year AEWR wage freeze would reduce annual U.S. farmworker wages by $475 million. Using a similar methodology, we estimate the likely wage reductions for U.S. farmworkers due to the new rule.27

The H-2A wage reduction under a fully enforced minimum wage is 25.8%. Based on the responsiveness of U.S farmworker wages to H-2A wage rates from Rutledge et al., the second row of Table 1 shows that the new rule could reduce U.S. farmworker wages by 7.1%, or $2.7 billion in annual pay. The wage losses are again larger if states allow the housing deduction to push pay below the state minimum. In that case, U.S. farmworkers in 2026 would experience an annual pay cut of $3.3 billion, or 8.7%.28 

This means that farmworkers in total will see annual pay cuts of about $4.4 billion to $5.4 billion, depending on the enforcement of state minimum wage laws (9.9% to 12.1%). This amounts to a massive pay cut for farmworkers who are already some of the lowest-paid employees in the entire U.S. labor market, while working in one of the most difficult and dangerous jobs in the economy.

Estimates for alternative scenarios for wage transfers from H-2A farmworkers to farm operators

In this subsection we discuss alternative skill level scenarios that could result and one that DOL could have considered. The scenario that DOL predicts will result, with 92% of H-2A farmworkers being paid the skill level 1 wage and 8% being paid the skill level 2 wage, is an arguably reasonable estimate given certified wage rates in DOL disclosure data and employer behavior under a similar wage rule in the H-2B program29—a sister visa program of H-2A for workers in occupations outside of agriculture—which was implemented by the George W. Bush administration.

The first possible alternative scenario, which we believe is reasonable given employer savings and the growth that is likely to occur in the H-2A program, is one where 100% of H-2A workers are paid at the skill level 1 wage (or closer to 100% than 92%). Thus we have calculated what the wage losses would look like in that case, shown in Table 3. If state minimum wages were fully enforced and do not permit the hourly AEWR paid to workers to go below the state minimum wage, then H-2A annual wages would fall by $1.8 billion in 2026, or 26.8%. If state minimum wages were not fully enforced and the housing deduction drops wage rates below the state minimum wage rates, the losses would be larger: a $2.2 billion or 32.9% annual pay loss. Both result in a pay cut that is $100 million greater relative to the 92/8 scenario. 

Table 3

Another possible scenario could result if DOL updated and amended the IFR to require the minimum AEWR to be set at the skill level 2 wage, which is the median wage (i.e. the 50^th percentile wage), for the five OEWS occupations DOL uses to calculate the state AEWRs. This is not a likely scenario without a change to the IFR because unless they are forced to do otherwise, employers are likely to opt for the lower pay rates, as DOL also predicts. But setting the AEWR at the median would be a slightly more reasonable methodology for setting the AEWR—since it would at least arguably prohibit employers from undercutting H-2A wage rates relative to the median OEWS wages. (The H-2B program for example, sets the prevailing (minimum) wage rate at the local average wage for the occupation according to the OEWS.) Nevertheless this would still not be a methodology we believe is justified and we would not support it. Table 3 shows that even under this slightly more defensible formulation of the AEWR, H-2A workers would still see a pay cut of roughly $1 billion per year under both state minimum wage enforcement scenarios.

The median wage under the OEWS is still far too low

This significant wage cut for H-2A farmworkers, even if they are paid at the median wage according to OEWS data, reveals the inferiority of the OEWS data set for setting the wages of farmworkers. The OEWS does not directly survey farm employers, rather nonfarm employers that act as subcontractors and pay farmworkers much less on average—thus the OEWS is not an accurate representation of the farm labor market and should not be used to set the state AEWRs. DOL notes in the interim final rule that the OEWS will begin surveying farm employers in May 2026 and that the May 2027 release of the OEWS will be the first to include those survey data. However, it will take a number of additional years for the OEWS to have a robust data sample from farm employers as compared to a dedicated farm employment survey like the USDA’s FLS—three at least, given three-year cycle under which the OEWS operates under—and in the meantime, the wages of both H-2A and U.S. farmworkers will be undercut by billions each year.

Estimates for alternative scenarios for wage transfers from U.S. farmworkers to farm operators

Similarly to the alternative scenarios discussed in the previous section, we have calculated the wage losses to U.S. farmworkers where 100% of H-2A workers are paid the skill level 1 wage and where 100% are paid the skill level 2 wage. Table 4 shows that if state minimum wages were fully enforced and do not permit the hourly AEWR paid to workers to go below the state minimum wage, then annual wages for U.S. farmworkers would fall by $2.8 billion in 2026, or 7.4%. If state minimum wages were not fully enforced and the housing deduction drops wage rates below the state minimum wage rates, the losses would be larger: a $3.4 billion or 9% annual pay loss. Both result in a pay cut that is $100 million greater relative to the 92/8 scenario. 

Table 4 also shows that under the 100% skill level 2 scenario, U.S. farmworkers would see a pay cut of $1.4 billion or $1.6 billion, depending on enforcement of the state minimum wage laws. As noted earlier, different states may treat the AEWR and state minimum wage differently, so the total amount of annual pay losses would fall somewhere in between the amounts in each of the scenarios. 

Table 4

Estimates for alternative scenarios for wage transfers from H-2A and U.S. farmworkers

The final table shows the estimates of wage losses under the same alternative skill and state minimum wage enforcement scenarios, but for all farmworkers (U.S. + H-2A) farmworkers. Table 5 shows that if state minimum wages were fully enforced and do not permit the hourly AEWR paid to workers to go below the state minimum wage, then annual wages for all farmworkers would fall by $4.6 billion in 2026, or 10.3%. If state minimum wages were not fully enforced and the housing deduction drops wage rates below the state minimum wage rates, the losses would be larger: $5.6 billion, which is a 12.6% annual pay loss. Both result in a pay cut that is $200 million greater relative to the 92/8 scenario. 

Table 5

Table 5 shows that under the 100% skill level 2 scenario, all farmworkers would see a pay cut of $2.3 billion or 5.1% if state minimum wages were fully enforced, or $2.6 billion or 5.8% if they are not. Different states may treat the AEWR and state minimum wage differently, and in that case, the total amount of annual pay losses would fall somewhere in between those amounts. 

The IFR’s new housing deduction from H-2A wages will harm H-2A workers and adversely impact U.S. farmworkers because farm operators will prefer to hire underpaid H-2A workers

The IFR creates a new housing deduction that H-2A workers must pay out of the wages of each hour they work—which DOL refers erroneously refers to as a “housing adjustment.” In an Orwellian passage, DOL attempts to justify the housing deduction as promoting fairness for U.S. farmworkers who do not receive “additional non-wage compensation in the form of free housing.”30 The opposite is true: the housing deduction will harm both H-2A workers and U.S. workers.

H-2A workers are scarcely “benefitting” from employer-provided housing. H-2A housing is in fact, primarily for the benefit of the employer. The employer benefits by having a worker remain on or near the worksite, reducing travel time. Employers also benefit by exerting additional control over their workers whose lodging they own and control; workers have few options if they wish to reside elsewhere, and employers sometimes restrict the ability of workers to invite guests, which could include labor organizers or nonprofit groups that could inform H-2A workers of their rights.

H-2A workers also cannot reasonably be expected to afford housing in the United States on the low wages paid to H-2A workers. Even if they could afford housing—it could be nearly impossible to find temporary housing in a remote rural area, or to navigate the rental process if they don’t speak English, or have U.S. identification, or significant sums of money to pay for a down payment up front. H-2A workers also leave their families behind in their countries of origin and most are likely paying to maintain a residence there. Reducing the wages paid to H-2A workers by up to 30% as the IFR does, will only benefit employers by padding their profits by almost $880 billion in 2026, as DOL estimates.31

The housing deduction will also harm U.S. farmworkers, not help them. H-2A rules before the IFR required employers to offer no-cost housing to U.S. farmworkers if they were in corresponding employment with H-2A workers, thus they were entitled to the same benefit if they needed housing. But the massive reduction in wages that H-2A workers will see from the housing deduction will greatly reduce labor costs for employers who hire H-2A workers as compared to U.S. farmworkers—undercutting U.S. wages and incentivizing employers to hire H-2A workers and bypass U.S. farmworkers—which will unquestionably “adversely affect” the wages and working conditions of U.S. farmworkers.

The updated AEWR methodology and the housing deduction will conflict with many state minimum wage laws and DOL has not provided guidance on how to resolve them

The extremely low AEWRs that DOL has set in the IFR through the use of OEWS data and the creation of two skill levels has rendered the state AEWRs so low that many are now below the state minimum wage—or go below the state minimum wage after the housing deduction has been subtracted. Under the previous AEWR methodology, the AEWR was in all cases higher than the state minimum wage. While the state minimum wage will set the AEWR in states where the state minimum wage is higher than the AEWR, DOL has provided no guidance as to how H-2A employers should treat the housing deduction.

For example, in Florida, the biggest state for H-2A employment, the skill level 1 wage is $12.47 and the Florida state minimum wage will be $14.00 per hour in 2026. The AEWR methodology mandates that the higher state minimum wage of $14.00 per hour will set the H-2A wage. But when the housing deduction is subtracted from the state minimum wage, the H-2A wage falls to $12.00 per hour, violating the state minimum wage law. There are numerous states where this scenario plays out, but the IFR fails to mention or even contemplate this reality, or to suggest what the appropriate H-2A wage would be in such situations.

It is unclear how states will react to workers being certified at and/or paid an H-2A wage that is below the state minimum after the housing deduction, or if DOL will provide any guidance with respect to it. It is possible that some states will take the position that the hourly wage rates paid to H-2A workers may not go below the state minimum regardless of the housing deduction—essentially outlawing the deduction—while some states may allow the deduction, arguing that the federal AEWR regulation supersedes the state minimum wage law. The agricultural industry is likely to argue the latter, and the issue is almost certain to end up in multiple state and federal courts.

OEWS survey data are inadequate for setting the wage rates of H-2A farmworkers because they do not accurately represent the farm labor market

Since 1910, USDA has satisfied a statutory mandate to procure and preserve information concerning agriculture, including “by the collection of statistics” and “any other appropriate means within his power”32 by conducting the Agricultural Labor Survey, commonly referred to as the Farm Labor Survey (FLS).33 For decades the FLS has been the best and most reliable survey detailing conditions in the farm labor market—a fact DOL has acknowledged in multiple previous rulemakings on H-2A.34

USDA abruptly discontinued the FLS in late August of this year, before the final installment of the FLS could be completed for 2025. Arguably, this has left DOL without a viable survey with which to determine and set wage levels for H-2A workers that will prevent adverse effects on the wages of U.S. farmworkers. However, using the OEWS is not an adequate or rational alternative for setting H-2A wages given the inherent weaknesses in the OEWS data set.

First, as DOL notes, the OEWS only surveys non-farm employers—meaning farm labor contractors (FLCs) and other staffing firms that send farmworkers to different farms. However, nationwide, a majority of farmworkers are employed directly.35 As noted earlier, farmworkers employed by FLCs are paid only roughly only three-fourths of what farmworkers are paid when they are directly hired directly by farm employers.36 This is because FLCs are use a fissured subcontracting employment model, and research shows that subcontracted workers earn lower wages on average, in part because the FLC makes profits by taking a portion of workers’ wages and by lowering costs.37 EPI research also shows that FLCs account for the largest share of wage and hour violations in agriculture—roughly a quarter nationwide and half in two of the largest farm states, California and Florida.38 Thus, DOL is relying on a survey that is overrepresented by FLCs that pay farmworkers significantly less and violate the law at higher rates, while entirely excluding the vast majority of farmworkers who are directly employed and paid more.

Second, while DOL states that it will take action to revise the OEWS to cover agricultural employers to begin use in the May 2026 survey, with data first being available for the May 2027 edition of the OEWS, the reality is that OEWS data on agricultural employers will not be a reasonably adequate representation of the farm labor market until years after that. This is in part because the OEWS estimates are created by averaging wage rates across a span of three years. To be adequate, OEWS would need to collect data from farm operators in 2026, 2027, and 2028, with the data being first published and available at the earliest in 2029. In the meantime, the AEWRs set by OEWS wage data will be artificially low and adversely impacting the wages of H-2A workers and U.S. workers.

Another problematic aspect of using the OEWS is that the data being used by DOL for the 2026 AEWRs are from 2024, thus already two years behind, and DOL has made no upward adjustment for inflation so that the AEWRs reflect a more realistic snapshot of wage rates in the current farm labor market. It is irrational and harmful to both H-2A and U.S. farmworkers for DOL to use wages that are both representative of only non-farm employers and of wages that were paid to workers who were employed by FLCs two years ago.

The FLS was problematic in a similar way, with the average field and livestock worker wage in one year setting the AEWR for the following year, and DOL should have adjusted the FLS wages upward with an estimate for inflation, perhaps by using the Employment Cost Index (ECI) projection from the Congressional Budget Office (CBO) for private-sector wage growth,39 or the average annual wage increase for farmworkers for the past five or ten years. But at least the FLS was a reasonable representation of what employers were paying farmworkers, even if one year behind.

Third, OEWS data also fail to reflect the seasonal nature of the farm jobs filled by H-2A workers. By only collecting data in May and November, it will fail to capture wages during peak harvest season in the summer,40 when farm employment peaks and wages may be higher due to increased hiring. The FLS on the other hand, more adequately captures seasonal peaks in farmworker employment and wages by measuring wages at four points during the year, in January, April, July, and October. 

Seen in this light, the move to use the OEWS seems like an intentional move by DOL to lower the wages of farmworkers as much as possible while ostensibly retaining some connection to available data sets. This is not the first time DOL attempted to set the AEWRs with a data set that would result in lower wages. In 2008, the Department temporarily stopped relying on the FLS and also implemented multiple skill levels, which led to a “precipitous drop” in farmworker wages.41 Thus DOL was aware that moving from the FLS to the OEWS would drastically lower wages for farmworkers.

Using multiple skill levels akin to those in the H-1B program is inappropriate and DOL has rejected such a methodology for other low-wage jobs in the H-2B program

DOL’s decision in the IFR to adopt a multi-tiered prevailing wage structure, which DOL notes reflects the one created for the H-1B program in the H-1B Visa Reform Act of 2004,42 and to require its application to prevailing wage determinations in the H-2A program, was irrational, arbitrary, and not adequately justified by the DOL—similarly to when DOL created multiple skill levels for the H-2B program in 2008.43 The four wage levels for each occupation superimposed on the OEWS prevailing wage data were designed to apply to the H-1B visa category—a visa category where the vast majority of beneficiaries possess at least a bachelors, masters, or doctoral degree (the minimum requirement is a bachelor’s or its equivalent). The four wage levels are intended to be “commensurate with” the workers’ “experience, education, and the level of supervision.”44 In the IFR, DOL has created two skill levels, setting the first, skill level 1, at the 17^th wage percentile of wages surveyed in the OEWS, mirroring the level 1 prevailing wage in the H-1B program. The second is the at the 50^th percentile (the median wage), mirroring the level 3 wage in the H-1B’s four-tiered structure.

If crafted smartly and enforced adequately, four wage levels could arguably make sense in the H-1B context, if for no other reason than to account for the variation in levels of educational attainment amongst the beneficiaries who are granted an H-1B visa. However, as EPI research has shown, the wage levels are not scientifically linked to degrees of education and experience, they are simply chosen points along the distribution of surveyed wages by DOL, and as Ron Hira and I have argued, DOL has set the two lowest wage levels far too low to protect U.S. wage standards.45 In addition, in the H-1B program it is clear that in practice the employer gets to choose the wage level and the government doesn’t verify that a prevailing wage is appropriate unless a lawsuit or a complaint is filed by a worker,46 which is rare, and it seems that very little enforcement has ever been conducted by DOL to prevent underpaying and misclassifying workers at inappropriate wage levels. It is thus reasonable to expect the results will be similar with regard to the use of skill levels in the H-2A context.

DOL’s use of skill levels for H-2A is akin to how it applied the four H-1B wage levels to the H-2B program—another visa program used for temporary low-wage jobs outside of agriculture—and its subsequent rejection of them for H-2B is instructive and worth recalling. In a 2010 notice of proposed rulemaking, DOL observed that “[t]he types of jobs found in the H-2B program involve few if any skill differentials necessitating tiered wage levels.”47 This is because the occupations filled by H-2B workers generally require little or no formal education or training—if some training is required, it can often be learned quickly and on the job (e.g., in the case of janitors, landscapers, amusement park and hotel staff)—and such positions offer little in the way of career advancement. As a result, employers hiring under the H-2B rule with multiple skill levels would routinely hire H-2B workers at the lowest prevailing wage level, because they are in fact searching for workers with only the most basic skills and no formal education. This had an obvious impact on wages, as DOL observed, finding that “in about 96 percent of the cases, the H-2B wage is lower than the mean of the OES wage rates for the same occupation.”48 [The OEWS was formerly known as the OES, which stands for Occupational Employment Statistics.] Using skill levels in the H-2A context will necessarily result in lowered wages for U.S. workers in farm occupations because they will be forced to compete with H-2A workers who are paid at the 17^th percentile for skill level 1, far less than the going rate for a U.S. farmworker.

DOL in its proposed H-2B wage methodology in 2010 also noted that “even if skill-based wage tiers were desirable as a theoretical matter, neither the OES nor any other comprehensive data series that we are aware of attempts to capture such variations.”49 The OEWS wage data do not differentiate the types of skills that would justify one particular wage level or tier over another, because, as DOL explained, “the actual OES survey instrument does not solicit data concerning the skill level of the workers whose wages are being reported.”50 In other words, there is no scientific correlation between the range of experience and skill level within an occupation and the wage tiers superimposed on the OEWS wage data.

Any prevailing wage structure that permits H-2A workers to be paid below the mean or the median wage is flawed and should be rejected by DOL. The H-2A statute’s mandate to ensure U.S. workers are recruited for farm jobs and to guard against adverse impacts on the wages of U.S. farmworkers cannot be complied with if employers are allowed to pay their H-2A employees at wages that are below the mean or median. By definition, any employer who is allowed to pay their H-2A employee a wage that is below the mean or median will be putting downward pressure on “wages and working conditions of workers in the United States similarly employed.” And U.S. workers will be reluctant to apply for jobs that are being advertised at wage rates that are far below the mean or median.

The mean or median wage alone as defined by the OEWS however, would still be too low of a wage, given the flaws inherent in the OEWS that render it an inadequate data set for setting H-2A wages, as discussed earlier. This is illustrated by the findings in Tables 3 and 4. Table 3 shows that even if all H-2A workers were paid at skill level 2, the median wage according to the OEWS, H-2A farmworkers would still see annual wage loses of $0.9 to $1.0 billion, and Table 4 shows that even if H-2A farmworkers are paid the median, U.S. farmworkers would see wage losses of $1.4 billion to $1.6 billion. To ensure that employers do not put downward pressure on the wages of U.S. farmworkers, DOL should amend the IFR to rely on FLS wages for 2024 or the latest release for 2025, which was published in May 2025 and had results for the January and April reference weeks. Those wage rates could then be adjusted upward with an estimate for inflation, perhaps by using the Employment Cost Index (ECI) projection from the Congressional Budget Office (CBO) for private-sector wage growth,51 or the average annual wage increase for farmworkers for the past five or ten years.

Furthermore, Congress directed DOL through the H-1B statute to set four wage level tiers for the H-1B program, but Congress was silent when it came to wage levels in the H-2A program, which is strong evidence that they intended for the H-2A program to not use wage tiers. The H-2A statute states simply that the wages and working conditions of U.S. farmworkers should not be adversely impacted, and it is obvious that creating a new skill level that allows employers to pay farmworkers below the median or mean farmworker wage will undercut wage rates in agriculture and violate the plain language of the statute.

There is no question that creating a skill level that is below the median wage in the new AEWR methodology is inappropriate for farm jobs and will lead to adverse impacts on the wages and working conditions of U.S. farmworkers, and as a result, DOL should rescind the AEWR methodology in the IFR. But even skill level 2, which the IFR sets at the median wage, contradicts the H-2A statute because it is based on OEWS data which are inappropriate given the aforementioned flaws of the survey (only surveying farm labor contractors etc.) that lead to much lower wage rates than the FLS.

DOL did not consider or estimate the impact of the 50% rule, which will undercut the wages of workers outside of agriculture and circumvent the H-2B annual cap

The IFR permits farm operators to pay H-2A workers the state AEWR for duties associated with higher-paying occupational codes that fall outside of the main farmworker SOCs, for up to 50% of their workdays, as long as the duties that fall outside of the main farmworker occupations do not make up a majority of the workdays. In other words, H-2A workers could be employed doing construction work or truck driving for up to 50% of their workdays while being paid the AEWR—as long as they did not engage in those non-farmworker/non-agricultural duties for a majority of their workdays. While DOL is right to point out that many H-2A workers perform tasks associated with higher-paying occupations outside of agriculture, the IFR does not create adequate safeguards to protect workers and the result will be downward pressure on a number of occupations like construction and truck driving. DOL does not seem to have considered these impacts in the IFR nor has DOL attempted to estimate the impacts on U.S. workers, and the relevant provisions in the IFR do not appear to have been crafted carefully. DOL should rescind these provisions, estimate the impacts, and go back to the drawing board and solicit public input from the public, unions, and worker groups, whose interests appear to have been entirely ignored.

The IFR states that :

For all other occupations… The occupational classification and applicable Adverse Effect Wage Rate shall be determined based on the majority (meaning more than 50 percent) of the workdays during the contract period the worker will spend performing the agricultural labor or services, including duties that are closely and directly related, and the qualifications on the job order.52

Many of the terms in this passage are not defined clearly and it will be difficult for certifying officers (COs) and State Workforce Agencies (SWAs) to interpret in practice. For example the IFR uses a “workdays” standard for this provision to determine if a worker is performing job duties associated with agricultural labor, but workdays are not defined. How much time engaging in a particular task constitutes a “workday”? Why didn’t DOL use work hours instead?

DOL expects that adjudicators, COs, and SWAs will review the job duties on a job order and determine which duties will be performed for a majority of workdays, and then choose the applicable SOC code or codes and AEWRs, whether it be the AEWR for the main farmworker occupations or a separate non-farm occupation or occupations. But what are “closely and directly related” duties? Is the construction of a building on a farm closely and directly related to agricultural labor because it occurs on a farm? Would DOL certify a position that permits an H-2A worker to work for 60%, 80%, or 100% of their work hours doing work that should be classified in the construction laborer SOC code, since it takes place on a farm? And would DOL require that worker to be paid the AEWR rate rather than the higher construction laborer wage rate since it may believe that construction duties are closely and directly related to agricultural work, because it takes place on a farm?

Clarity is lacking and DOL’s language in the IFR creates a massive loophole that will lead to farmworkers being underpaid when they engage in non-agricultural tasks and U.S. workers in non-farm occupations will be undercut when they have to compete with underpaid H-2A workers who have few rights or other options, or the power to negotiate a higher wage with their employer. DOL’s lack of emphasis that H-2A jobs should be agricultural in nature and it’s broad and undefined closely and directly related standard, are not enough to prevent H-2A workers from being underpaid at the AEWR for higher-paying job duties.

The wage savings for employers who take advantage of the loophole created by the IFR are significant—creating a strong incentive to underpay H-2A workers. For example, DOL’s AEWR spreadsheet shows that the construction laborers occupation, Standard Occupational Code (SOC) 47-2061, in California has a median wage of $31.50 an hour (i.e. the skill level 2 wage for U.S. workers). The median wage can be considered the going rate for construction workers in California; if an employer wanted to hire a construction laborer, $31.50 is roughly the wage workers would expect to be paid, and that an employer recruiting a worker would have to advertise the job at. Compare the construction laborer median wage to the combined farmworker occupations AEWR for skill level 1 in California, which will be $16.90 in 2026, as set by the higher state minimum wage. The California AEWR will be just 54% of the statewide median wage for construction laborers—leading to a massive savings for farm employers who pay the AEWR for construction work.

In the southeast, in Georgia, it’s a similar story. According to DOL’s AEWR spreadsheet, the median (skill level 2) wage for U.S. workers in the construction laborers occupation is $19.43 per hour. The skill level 1 AEWR in Georgia, after the housing deduction is subtracted, is $8.77 an hour. That’s just 45% of the median wage for construction work—again giving employers a massive incentive to use H-2A labor to undercut wage standards in construction.

While DOL has now published applicable AEWR rates at two skill levels for occupations outside of the five main combined farmworker occupations, it is unlikely that employers will ever draft job orders in a manner that leads an adjudicator to select the higher wage to be paid to an H-2A worker, or that DOL will ever judge that the higher wage should be paid, given the broad and undefined standards for adjudication in the IFR. Since the H-2A the program is uncapped, employers who actually adhere to the standard in the IFR will still be able to get around the IFR’s requirements by hiring additional H-2A workers and having them work half their workdays doing non-farm duties while being paid the lower wage

A major open question is how much scrutiny and oversight will be applied to job orders that list job duties outside of the main farmworker occupations. Will each job order be reviewed by COs, SWAs, and staff at the Office of Foreign Labor Certification (OFLC) at DOL to prevent misclassification? Funding at OFLC has been flat while the workload has increased significantly,53 making additional scrutiny of 380,000 to over 500,000 job orders unrealistic. What about oversight after H-2A workers are already employed in the United States? Given that the number of Wage and Hour Division investigations of agricultural employers dropped to a record low of 659 in 202454 and that the number of investigators is also at a record low in 2025,55 and the fact that already, far fewer than 1% of agricultural employers are inspected in a given year,56 it is unlikely that employer abuse of this provision in the IFR will ever be discovered, allowing employers to operate with impunity and underpay H-2A workers.

DOL should take a strong stance that it will not certify any positions where a majority of the work hours will consist of duties outside of the main farmworker occupations. Such positions—like construction laborers, light truck drivers, and heavy and tractor-trailer truck drivers—are more appropriate for the H-2B program, where DOL sets the minimum wage at the local average wage according to the OEWS. If H-2A workers are allowed to continue to engage in tasks and duties outside of the main farmworker occupations that should be paid at the higher wage for the occupation, DOL should cap the number of work hours in the non-farm occupation at 20%, and not certify any jobs where H-2A workers will spend more than 20% of their work hours performing those duties. And if H-2A workers are in fact performing tasks and duties outside of the major farmworker occupations, they should be paid the higher non-farm SOC’s wage—at the median, skill level 2 wage—for 100% of their work hours. In addition, if it is higher, they should be paid at the local average wage according to the occupation in the OEWS, which is DOL’s H-2B wage methodology, in order to prevent undercutting the wages of H-2B workers and U.S. workers similarly employed.

Recommendations

This section provides a brief summary of the recommendations, most of which are discussed in more detail in the earlier sections of this comment.

The White House should direct USDA to reinstate the Farm Labor Survey to set the AEWRs

The FLS has been the best and most reliable survey detailing conditions in the farm labor market—a fact DOL has acknowledged in multiple previous rulemakings on H-2A.57 USDA abruptly discontinued the FLS in late August of this year, before the final installment of the FLS could be completed for 2025. This has left DOL without a viable survey with which to determine and set wage levels for H-2A workers that will prevent adverse effects on the wages of U.S. farmworkers. While DOL is not responsible for USDA’s discontinuation of the FLS, in order to have an adequate data set with which to set the AEWRs, DOL should urge USDA and the White House that the FLS should be reinstated as quickly as possible in order to comport with 8 U.S.C. §1188(a)(1)’s requirement that H-2A employment “will not adversely affect the wages and working conditions of workers in the United States similarly employed.”

The OEWS is inadequate and inappropriate for setting the AEWR because it does not reflect an accurate picture of the farm labor market, and DOL’s improvements will take years to implement

In multiple previous formal comments to DOL, we have discussed the inadequacies of the OEWS data set, including for its use to set agricultural wages,58 and have done so again here. Thus, until and unless DOL makes significant investments in, and improvements to, the OEWS data, they will continue to be inadequate as a substitute for the FLS. The OEWS’s reliance on wage data collected exclusively by farm labor contractors with a fissured business model and lower wages will significantly lower the AEWRs—as the results of the new AEWRs set in the IFR make clear. DOL notes that it is taking steps to improve the collection of farmworker wage and earnings data in the OEWS; for example, by expanding the population surveyed by the OEWS to include farm operators. However, while DOL says the first updated OEWS data will be available for the May 2027 edition of the OEWS, the reality is that OEWS data on agricultural employers will not be a reasonably adequate representation of the farm labor market until years after that. This is in part because the OEWS estimates are created by averaging wage rates across a span of three years. To be adequate, OEWS would need to collect data from farm operators in 2026, 2027, and 2028, with the data being first published and available at the earliest in 2029. In the meantime, the AEWRs set by OEWS wage data will be artificially low and adversely impacting the wages of H-2A workers and U.S. workers.

In addition, the OEWS data being used by DOL for the 2026 AEWRs are from 2024, thus already two years behind, and DOL has made no upward adjustment for inflation so that the AEWRs reflect a more realistic snapshot of wage rates in the current farm labor market. It is irrational and harmful to both H-2A and U.S. farmworkers for DOL to use wages that are both representative of only non-farm employers and of wages that were paid to workers who were employed by FLCs two years ago.

DOL should eliminate the use of artificial skill levels to set the AEWRs

DOL’s decision in the IFR to adopt a multi-tiered prevailing wage structure, which DOL notes reflects the one created for the H-1B program in the H-1B Visa Reform Act of 2004,59 and to require its application to prevailing wage determinations in the H-2A program, was irrational, arbitrary, and not adequately justified by the DOL—similarly to when DOL created multiple skill levels for the H-2B program which were later invalidated by a federal court and which DOL ultimately rejected. DOL notes at 90 Fed. Reg. 47933 that it has:

conclude[d] employers seeking temporary nonimmigrant workers under the H-2A visa classification should receive an AEWR determination that also takes into account the qualifications of the employer’s job offer to better effectuate the requirement to, protect the wages of U.S. workers similarly employed and more closely align the wage standard in the H-2A program with the wage standards in other employment-based immigration programs which use skill-based wage levels.

This reasoning fails for the reasons cited earlier, namely that unlike with the H-2A program, the four H-1B prevailing wage levels are mandated by statute, and are intended to differentiate between workers with different levels of education and experience in a work visa program where the minimum requirement is a bachelor’s degree. In addition, any prevailing wage structure that permits H-2A workers to be paid below the mean or the median wage is flawed and should be rejected by DOL because it fails to guard against adverse impacts on the wages of U.S. farmworkers as the H-2A statute’s mandate requires. By definition, any employer who is allowed to pay their H-2A employee a wage that is below the mean or median will be putting downward pressure on “wages and working conditions of workers in the United States similarly employed.” The mean or median wage as defined by the OEWS however, would not suffice, given the flaws inherent in the OEWS that render it an inadequate data set for setting H-2A wages, as discussed earlier, and as illustrated by the findings for skill level 2 wage impacts in Tables 3 and 4.

DOL should base the 2026 AEWR on the most recent FLS survey data available

Even if the FLS is not reinstated, to ensure that employers do not put downward pressure on the wages of U.S. farmworkers through H-2A employment, the IFR should be rescinded and DOL should rely on the most recent FLS data available to set the 2026 AEWR. This would mean using either the FLS annual wage data for 2024 (which set the 2025 AEWRs) or the latest release for 2025, which was published in May 2025 and had results for the January and April reference weeks. Those wage rates could then be adjusted upward with an estimate for inflation for 2026, by using the Employment Cost Index (ECI) projection from the Congressional Budget Office (CBO) for private-sector wage growth,60 or the average annual wage increase for field and livestock workers in the FLS for the past five or ten years.

DOL in fact proposed a similar methodology in its 2020 AEWR Final Rule.61 That methodology would have abandoned the FLS, frozen worker wages for two years, and then adjusted the AEWR annually based on the Employment Cost Index for wages and salaries for the preceding 12 months. Freezing wages for two years would have been disastrous for workers, and DOL was rightly enjoined by a federal court from enforcing the 2020 AEWR Rule partly for that reason—but adjusting the FLS-based AEWR for inflation was a reasonable response to updated FLS data no longer being available.

H-2A employers should not be permitted to have their H-2A employees engage in non-agricultural tasks like construction for more than a small share of their work hours; never more than 20%

As discussed above, under the IFR farm operators will be permitted to employ H-2A workers who are paid at the combined farmworker occupations AEWR wage rates even when their job duties consist of non-agricultural tasks that would command much higher wages under the OEWS, for up to 50% of their workdays; so long as those job duties do not account for a majority of workdays. This will allow the employers of H-2A workers to undercut U.S. wage standards for occupations like construction and truck driving. Farm operators who primarily wish to hire construction workers, truck drivers, or workers in other non-agricultural occupations outside of the main farmworker (i.e. field and livestock worker combined) SOCs codes are eligible to utilize the H-2B program—which Congress created to fill labor shortages in occupations outside of agriculture—and should do so. Instead, DOL in the IFR has created a scheme that is rife with loopholes and that will be easily gamed by farm operators who can save on labor costs by hiring H-2A workers instead of U.S. construction workers and truck drivers, etc., who would command much higher wage rates than the combined farmworker SOC AEWRs. While it is understandable that H-2A workers in some cases will be required to carry out job duties that do not fall entirely under the main farmworker occupations—as DOL has acknowledged in the IFR by creating AEWRs by SOC codes for non-farm occupations—permitting anything beyond small share of an H-2A worker’s work hours to be dedicated to non-agricultural tasks risks undermining the statutory protections for workers in the H-2A program as well as the H-2B’s statutory protections and annual numerical limit. When certifying officers and State Workforce Agencies identify more than one SOC code for an occupation, they should require the employer to certify that the employee will not be engaged in duties that fall outside the definition of agriculture and the main combined farmworker SOC codes for more the 20% of the total work hours.

H-2A employers should be required to pay H-2A workers who engage in non-farm tasks at the higher non-farm wage for the occupation for 100% of their work hours, at skill level 2 or at the local average OEWS wage, whichever is higher

As discussed in the previous subsection, H-2A employers should not be permitted to have their H-2A employees engage in non-agricultural tasks like construction for more than a small share of their work hours; never more than 20%. If COs and SWAs identify more than one SOC code, including one that is outside of the main combined farmworker SOC codes (i.e. field and livestock worker combined), and where the worker will spend up to 20% of their work hours engaged in non-agricultural tasks and duties, then the H-2A worker should be paid the SOC code with the higher wage for 100% of the worker’s work hours. But skill level 1, because it is so far below the true market rate or the local median or average for both farm and non-farm occupations, should never set the AEWR for a non-agricultural occupation/SOC code. Instead, H-2A workers who are paid for 100% of their work hours for a non-agricultural occupation should be paid either the state median wage for the SOC—which is the skill level 2 AEWR—or the local average wage according to the occupation in the OEWS, if it is higher. The local average wage (i.e. the mean wage in the region or metropolitan statistical area, etc., as defined by the OEWS) is DOL’s H-2B wage methodology. The H-2B prevailing wage formulation should be included because H-2A workers performing duties in non-agricultural SOC codes will be doing work that would normally require an employer to hire an H-2B worker. Thus the same wage methodology must be utilized in order to prevent undercutting the wages of H-2B workers and U.S. workers similarly employed.

Paying workers for 100% of work hours at the highest wage rate for an applicable SOC code outside of the combined farmworker SOC codes is similar to DOL’s 2023 AEWR rule.62 In that rule, if the job duties on the H-2A application (including the job order) did not fall within a single occupational classification, and the occupations involved were subject to different AEWRs, the applicable AEWR would be the occupation with the highest wage for the applicable occupational classifications, and the worker would be paid for 100% of their work hours at that wage. The 2023 AEWR was vastly superior to the AEWR methodology in the IFR; EPI supported that proposed and final rule, with a key recommendation being that when the OEWS was used to set an AEWR, DOL should use the highest of the local or statewide OEWS wages. Agribusiness interests and employers filed multiple lawsuits that ultimately led to the 2023 rule being vacated recently, but only after the current administration ceased to defend the rule in court.63

If OEWS data are utilized to set wages, they should be set at the 90^th percentile wage for the state

The statutory mandate to ensure that U.S. workers are adequately recruited and that the employment of H-2A workers does “not adversely affect the wages and working conditions of workers in the United States similarly employed,” can only be met if the wage that employers must offer to U.S. workers to test the labor market is high enough to attract them and to prevent downward pressure on wages and standards in agriculture. Setting the wage at the new AEWRs according to the OEWS, a data set that is not appropriate for agricultural workers, will be far too low to attract available U.S. workers to work on farms. While DOL should not use the OEWS, if it continues to do so, DOL should not set the AEWR at percentiles (like the 17^th) that will put downward pressure on the wages of farmworkers. DOL could instead more adequately test the labor market and protect wages standards in agriculture by setting the AEWR at the 90^th percentile wage.

The following is one example comparing the OEWS 90^th percentile wage to the 2025 AEWR: Take the Farmworkers and Laborers, Crop, Nursery, and Greenhouse (SOC 45-2092) occupation in the OEWS for 2024—which is the most common and relevant farmworker occupation in the OEWS for H-2A jobs—and compare it with the wage rates set in the 2025 AEWR, which DOL set with FLS data from 2024. The 2025 AEWR for California, which is based on FLS data from 2024 (making it the more appropriate comparison year for 2024 OEWS wages) was $19.97. The 2024 OEWS 90^th percentile wage in California for SOC 45-2092 was $21.97 in 2024,64 about 10% percent more than the 2025 AEWR. The 2025 AEWR for Florida (based on 2024 FLS survey data) was $16.23, and the OEWS 90^th percentile wage for the occupation in 2024 was $17.81, just under 10% more than the FLS wage.

Since the OEWS already reports the 90th percentile wage, DOL would not have to do any complicated arithmetic when setting AEWRs. While still inadequate as compared to using FLS data, setting the AEWR at the 90^th percentile wage would help adjust for the fact that the OEWS only surveys non-farm employers that pay much lower wages to farmworkers and excludes directly-employed farmworkers. Setting the AEWR at the 90^th percentile wage, with a roughly 10% increase that results relative to the FLS data set of the same year in the main OEWS farmworker occupation in these two significant examples, would also help adjust for the fact that fringe benefits are not included in OEWS data—and help compensate for DOL’s ill-advised housing deductions—in either case making it a fairer wage vis-à-vis U.S. farmworkers, and going further to ensure that U.S. workers are adequately recruited and do not suffer adverse impacts. The 90^th percentile would also help protect the higher earners in farm occupations, rather than creating a de facto cap on H-2A earnings at the 50^th percentile (median) wage, which adversely impacts higher earners in the occupation. It must also be noted that 2024 OEWS wages are being used to set 2026 AEWRs in the IFR, despite being two years behind and not adjusted for inflation. If this recommendation is adopted, the 90^th percentile AEWRs should also be adjusted for inflation using the CBO’s projections in the Employment Cost Index, or by the annual average real increase in farmworker wages for the past five or ten years, if the OEWS wage data used are from years prior to the year for which they will be used to set the AEWR. (In other words the 2024 OEWS-based AEWRs should be adjusted for inflation to their projected real value in 2026, etc.)

Conclusion

There is no evidence to suggest that farmworkers overall have been overpaid or that the AEWR rates that H-2A workers have been paid are too high and unsustainable for farm operators to earn a profit. In fact, the evidence presented in this comment shows the opposite is true—that farmworkers are underpaid according to a number of metrics and their wages have far to go before they can reach levels that would make them comparable to workers employed outside of the agricultural industry. In addition, as USDA has pointed out, the modest increases in farm wages have been “offset” by productivity and output prices, so that “labor costs as a share of gross cash farm income have not shown an upward trend for the sector (as a whole) over the past 20 years.”65 Farmers have virtually exponentially increased their use of the H-2A program under the previous AEWR methodology—in fact its use and popularity is at an all-time high—contradicting DOL’s claims that the program needs radical changes to be sustainable for farm operators. As a result, DOL has not shown an adequate justification for sharply cutting the wages of H-2A farmworkers—or for lowering wages and reducing opportunities for U.S. farmworkers, which will inevitably result if the IFR is allowed to stay in place. In addition, The Administrative Procedure Act requires DOL to provide more notice and an opportunity for the public to comment—and must devise additional analyses and estimates regarding impacted stakeholders—before it can make such a radical change to a program that will impact the entire agricultural industry.

We urge DOL to resist the pressure from agribusiness to intentionally degrade wages and standards in the agricultural industry. Instead, we urge DOL to rescind the IFR and focus its efforts on protecting labor, health, and safety standards and worker rights for farmworkers, regardless of their immigration status, by vigorously enforcing the labor and employment laws that are applicable to farm operators.

Daniel Costa
Director of Immigration Law and Policy Research
Economic Policy Institute

Endnotes 

1. As counted by the latest Census of Agriculture from the U.S. Department of Agriculture, 2022.

2.  See Daniel Costa and Ben Zipperer, “Trump’s new H-2A wage rule will radically cut the wages of all farmworkers: New estimates show farmworkers stand to lose $4.4 to $5.4 billion annually under DOL’s updated Adverse Effect Wage Rate,” Working Economics blog (Economic Policy Institute), November 26, 2025.

3. Wenson Fung, Kimberly Prado, Amanda Gold, Andrew Padovani, Daniel Carroll, and Emily Finchum-Mason, Findings from the National Agricultural Workers Survey (NAWS) 2021–2022: A Demographic and Employment Profile of United States Crop Workers, Research Report no. 17, JBS International for the Employment and Training Administration, U.S. Department of Labor. September 2023.

4. See National Agricultural Statistics Service, “Agricultural (Farm) Labor,” for more background and to access Farm Labor Reports, U.S. Department of Agriculture.

5. Federal Policy Watch, “USDA ends the Agricultural (Farm) Labor Survey, the U.S.’s only survey of agricultural employers,” Economic Policy Institute, September 3, 2025.

6. Economic Policy Institute, State of Working America Data Library, “Hourly wage, average – Average real hourly wage (2024$),” 2025.

7. Economic Research Service, “Wages of Hired Farmworkers” in “Farm Labor,” U.S. Department of Agriculture, Updated November 18, 2025.

8. Wenson Fung, Kimberly Prado, Amanda Gold, Andrew Padovani, Daniel Carroll, and Emily Finchum-Mason, Findings from the National Agricultural Workers Survey (NAWS) 2021–2022: A Demographic and Employment Profile of United States Crop Workers, Research Report no. 17, JBS International for the Employment and Training Administration, U.S. Department of Labor. September 2023.

9. Veronica Nigh, “AEWR Methodology Change a Blow to Growers,” Market Intel, American Farm Bureau, March 30, 2023; American Hort, “Why You Can Expect Steep H-2A Wage Increases in 2022,” Greenhouse Grower, December 11, 2021.

10. Employment and Training Administration, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, U.S. Department of Labor, Interim Final Rule, 90 Fed. Reg. 47914, at 47923 (October 2, 2025).

11. Comments of Craig Regelbrugge in American Hort, “Why You Can Expect Steep H-2A Wage Increases in 2022,” Greenhouse Grower, December 11, 2021.

12. EPI analysis of Adverse Effect Wage Rates for 2021 and 2022 for the listed states; AEWRs are from the Employment and Training Administration, U.S. Department of Labor. All values have been adjusted to constant 2022 dollars using the Consumer Price Index (CPI-U). See also discussion and tables in Daniel Costa, “Testimony prepared for the U.S. Senate Committee on the Judiciary for a hearing on ‘From Farm to Table, Immigrant Workers Get the Job Done,’” Economic Policy Institute, May 31, 2023.

13. U.S. Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers: Food in U.S. City Average [CPIUFDSL], retrieved from FRED, Federal Reserve Bank of St. Louis, last accessed November 26, 2025.

14. Economic Research Service, “Wages of Hired Farmworkers” in “Farm Labor,” U.S. Department of Agriculture, Updated November 18, 2025.

15. 5 U.S.C. § 553(b)(B)

16. Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014).

17. Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012).

18. Wenson Fung, Kimberly Prado, Amanda Gold, Andrew Padovani, Daniel Carroll, and Emily Finchum-Mason, Findings from the National Agricultural Workers Survey (NAWS) 2021–2022: A Demographic and Employment Profile of United States Crop Workers, Research Report no. 17, JBS International for the Employment and Training Administration, U.S. Department of Labor. September 2023.

19. Jake Traylor, Myah Ward and Samuel Benson, “‘I really feel for her’: Brooke Rollins’ impossible Trump administration mandate,” Politico, July 10, 2025; Marcia Brown, “Ag secretary says able-bodied Medicaid recipients should replace immigrant farm workforce,” Politico, July 8, 2025.

20. Joseph Gedeon, “US agriculture secretary says Medicaid recipients can replace deported farm workers,” The Guardian, July 9, 2025.

21. See National Agricultural Statistics Service, “NASS discontinues select data collection programs and reports,” United States Department of Agriculture, August 28, 2025; for additional background see Federal Policy Watch, “USDA ends the Agricultural (Farm) Labor Survey, the U.S.’s only survey of agricultural employers,” Economic Policy Institute, September 2, 2025.

22. See Rural Migration News, “California: FLC Employment Down and Wages Up in 2020,” U.C. Davis, July 16, 2021. According to the latest data available from DOL’s Quarterly Census of Employment and Wages, in 2024, directly hired crop farmworkers in California earned $905 per week, as compared to crop farmworkers employed by farm labor contractors (FLCs) who earned $649, or 72% of what directly-employed crop farmworkers earned. Nationwide in 2024, FLC employees earned 76% of what directly-employed crop farmworkers earned: $862 vs $655. See industry codes 111 (Crop production) and 115115 (Farm labor contractors and crew leaders).

23. See just one of many examples of reporting on this phenomenon: Felicia Mello and Wendy Fry, “State inspectors are supposed to visit all farmworker housing to ensure its safety. Sometimes they used FaceTime instead,” July 1, 2024.

24. Office of Foreign Labor Certification, Performance Data, Employment and Training Administration, U.S. Department of Labor [fiscal year 2024 data file for H-2A], last accessed November 25, 2025.

25. Wenson Fung, Kimberly Prado, Amanda Gold, Andrew Padovani, Daniel Carroll, and Emily Finchum-Mason, Findings from the National Agricultural Workers Survey (NAWS) 2021–2022: A Demographic and Employment Profile of United States Crop Workers, Research Report no. 17, JBS International for the Employment and Training Administration, U.S. Department of Labor. September 2023.

26. Zachariah Rutledge, Marcelo Castillo, Timothy J. Richards, Philip Martin, “H-2A Adverse Effect Wage Rates and U.S. farm wages,” American Journal of Agricultural Economics, first published June 9, 2025, https://doi.org/10.1111/ajae.12557.

27. For the full methodology, see the appendix in Daniel Costa and Ben Zipperer, “Trump’s new H-2A wage rule will radically cut the wages of all farmworkers: New estimates show farmworkers stand to lose $4.4 to $5.4 billion annually under DOL’s updated Adverse Effect Wage Rate,” Working Economics blog (Economic Policy Institute), November 26, 2025.

28. Given that U.S. workers typically do not experience nominal wage reductions, employers may implement the new lower pay rates for U.S. workers through wage freezes that are gradually eroded by inflation. At the same time, the high degree of churn and seasonality of farmworker jobs and the presence of a large contractor workforce may allow employers the opportunity to reduce U.S. wages more rapidly than would be the case in other sectors.

29. See discussion in Daniel Costa, The H-2B temporary foreign worker program: For labor shortages or cheap, temporary labor? Economic Policy Institute, January 19, 2016.

30. 90 Fed. Reg. 47941.

31. 90 Fed. Reg. 47955.

32. 7 U.S.C. § 2204

33. USDA, Farm Employment Estimates, 1910 Census: Volume 5, Agriculture (1913).

34. See Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, 86 Fed. Reg. at 68178; Temporary Agricultural Employment of H-2A Aliens in the United States, Final Rule, 75 Fed. Reg. at 6898.

35. The most recent edition of the National Agricultural Workers Survey showed that in 2021-22, 78% of non-H-2A crop farmworkers worked directly for a farm employer (see page 25).

36. See Rural Migration News, “California: FLC Employment Down and Wages Up in 2020,” U.C. Davis, July 16, 2021. According to the latest data available from DOL’s Quarterly Census of Employment and Wages, in 2024, directly hired crop farmworkers in California earned $905 per week, as compared to crop farmworkers employed by farm labor contractors (FLCs) who earned $649, or 72% of what directly-employed crop farmworkers earned. Nationwide in 2024, FLC employees earned 76% of what directly-employed crop farmworkers earned: $862 vs $655. See industry codes 111 (Crop production) and 115115 (Farm labor contractors and crew leaders).

37. A number of studies show a wage penalty for subcontracted/outsourced workers. For example, see Arindrajit Dube and Ethan Kaplan, “Does Outsourcing Reduce Wages in the Low-Wage Service Occupations? Evidence from Janitors and Guards,” Cornell University ILR Review. January 1, 2010); Deborah Goldschmidt and Johannes Schmieder, “The Rise of Domestic Outsourcing and the Evolution of the German Wage Structure,” The Quarterly Journal of Economics, Oxford University Press, vol. 132(3), 2017, pages 1165-1217; Andres Drenik, Simon Jäger, Pascuel Plotkin, and Benjamin Schoefer “Paying Outsourced Labor: Direct Evidence from Linked Temp Agency-Worker-Client Data,” Econometrics Laboratory, University of California, Berkeley, September 2020.

38. Daniel Costa, Philip Martin, and Zachariah Rutledge, Federal Labor Standards Enforcement in Agriculture: Data Reveal the Biggest Violators and Raise New Questions About How to Improve and Target Efforts to Protect Farmworkers, Economic Policy Institute, December 2020.

39. Congressional Budget Office, data supplement for CBO’s September 2025 report, CBO’s Current View of the Economy From 2025 to 2028, available at https://www.cbo.gov/system/files/2025-09/51135-2025-09-Economic-Projections.xlsx

40. See Figure A in Daniel Costa and Philip Martin, Coronavirus and farmworkers: Farm employment, safety issues, and the H-2A guestworker program, Economic Policy Institute, March 24, 2020.

41. Temporary Agricultural Employment of H-2A Aliens in the United States, 74 Fed. Reg. 45905, 45911 (proposed Sept. 4, 2009).

42. Immigration and Nationality Act (INA) §212(p)(4).

43. See CATA v Solis, p. 36-37, AILA Infonet Doc No. 10100169. (Posted 10/01/10).

44. Immigration and Nationality Act (INA) §212(p)(4).

45. Daniel Costa and Ron Hira, H-1B visas and prevailing wage levels: A majority of H-1B employers—including major U.S. tech firms—use the program to pay migrant workers well below market wages, Economic Policy Institute, May 4, 2020.

46. Daniel Costa and Ron Hira, H-1B visas and prevailing wage levels: A majority of H-1B employers—including major U.S. tech firms—use the program to pay migrant workers well below market wages, Economic Policy Institute, May 4, 2020.

47. 75 Fed. Reg. 61580.

48. 75 Fed. Reg. 61580, see n.2.

49. 75 Fed. Reg. 61580.

50. 75 Fed. Reg. 61580.

51. Congressional Budget Office, data supplement for CBO’s September 2025 report, CBO’s Current View of the Economy From 2025 to 2028, available at https://www.cbo.gov/system/files/2025-09/51135-2025-09-Economic-Projections.xlsx

52. 90 Fed. Reg. 47963.

53. See Figure B and discussion in Daniel Costa and Ron Hira, “EPI comment on DOL’s RFI regarding Schedule A modernization,” Economic Policy Institute, Public Comments, May 13, 2024. Submitted online via https://www.federalregister.gov/documents/2024/02/15/2024-03187/labor-certification-for-permanent-employment-of-foreign-workers-in-the-united-states-modernizing

54. See Wage and Hour Division, “Agriculture” [data tables], U.S. Department of Labor, accessed November 2025, and discussion of previous years in Daniel Costa and Philip Martin, Record-low number of federal wage and hour investigations of farms in 2022: Congress must increase funding for labor standards enforcement to protect farmworkers, Economic Policy Institute, August 22, 2023.

55. Jake Barnes, Janice Fine, Daniel J. Galvin, Jenn Round, Hana Shepherd, To Help U.S. Workers, We Need Labor Standards Enforcement, Not Mass Deportations, Data Brief, Workplace Justice Lab, Rutgers University, May 2025.

56. Daniel Costa and Philip Martin, Record-low number of federal wage and hour investigations of farms in 2022: Congress must increase funding for labor standards enforcement to protect farmworkers, Economic Policy Institute, August 22, 2023.

57. See Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, 86 Fed. Reg. at 68178; Temporary Agricultural Employment of H-2A Aliens in the United States; Final Rule, 75 Fed. Reg. at 6898.

58. Daniel Costa and Ron Hira, “EPI comments on DOL Request for Information on determining prevailing wage levels for H-1B visas and permanent labor certifications for green cards,” Economic Policy Institute, June 1, 2021, public comment submitted for Request for Information on Data Sources and Methods for Determining Prevailing Wage Levels for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States, Request for Information, DOL Docket No. ETA-2021-0003, RIN: 1205-AC00. Regarding the OEWS and agricultural wages, see Daniel Costa, “EPI comments on DOL’s proposed changes to the Adverse Effect Wage Rate methodology for H-2A visas for temporary migrant farmworkers,” Economic Policy Institute, January 31, 2022, public comment submitted for Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, RIN: 1205-AC05, DOL Docket No. ETA-ETA-2021-0006.

59. Immigration and Nationality Act (INA) §212(p)(4).

60. Congressional Budget Office, data supplement for CBO’s September 2025 report, CBO’s Current View of the Economy From 2025 to 2028, available at https://www.cbo.gov/system/files/2025-09/51135-2025-09-Economic-Projections.xlsx

61. Employment and Training Administration, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, U.S. Department of Labor, 20 CFR Part 655, DOL Docket No. ETA-2019-0007, RIN 1205-AB89 (November 5, 2020).

62. Employment and Training Administration, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, U.S. Department of Labor, final rule, 20 CFR Part 655, DOL Docket No. ETA-2021-0006, RIN 1205-AC05 (February 28, 2023).

63. Judgment, Teche Vermilion Sugar Cane Growers Ass’n Inc. v. Su, No. 6:23-cv-00831-RRS-CBW (W.D.La. Aug. 21, 2025), ECF No. 87.

64. OEWS data for 2024: https://data.bls.gov/oes/#/area/0600000

65. Economic Research Service, “Labor Cost Share of Total Gross Revenues,” in “Farm Labor,” U.S. Department of Agriculture, Updated November 18, 2025.

The farmworkers who toil in the fields do not deserve a pay cut—they deserve a raise. Instead of cutting wages, the Trump administration should restore the previous standards that required employers to pay H-2A workers no less than the average wage for field and livestock workers according to the U.S. Department of Agriculture.

Introduction to the H-2A visa program and the Adverse Effect Wage Rate (AEWR)

The H-2A visa program is used to fill seasonal and temporary jobs in agriculture, after employers go through a (mostly pro-forma) process to prove that they could not find an available U.S. worker to hire. With no annual limit on the number of workers that can be hired, H-2A has been the fastest-growing U.S. work visa program—nearly tripling over the past decade to 352,682 workers in 2024, according to our estimates (see Figure A). The vast majority of H-2A workers are employed on crop farms—picking fruits and vegetables—and the average duration of an H-2A job is roughly six months.

Figure A

It is well documented that the H-2A program is rife with abuse and workers are not adequately protected, in part because H-2A farmworkers are indentured to their employers through their visa status and due to lax government oversight. As a result, there have been countless exposés from journalists and advocates that reveal how H-2A farmworkers are frequently robbed, exploited, victimized, and trafficked, and EPI has shown how most back wages stolen and employer penalties levied on farms come from employers breaking H-2A rules.

Some governance aspects of the H-2A program have long been a contentious policy fight, especially when it comes to worker rights and setting minimum wage rates for H-2A workers. The H-2A law requires that H-2A workers be paid the highest of the local, state, or federal minimum wage, unless there is an applicable local prevailing wage or collective bargaining agreement—or the Adverse Effect Wage Rate (AEWR) if it is higher, which is calculated and set by the U.S. Department of Labor (DOL) based on survey data. In fact, the vast majority of H-2A farmworkers have been paid the AEWR, since until now it was almost always higher than any of the otherwise applicable minimum wages. The purpose of the AEWR is to ensure that H-2A workers are paid a wage that is consistent with U.S. wage standards on farms and to prevent adverse impacts of H-2A employment on U.S. farmworkers’ wages. But the agricultural industry has pushed lawmakers and federal agencies to modify the AEWR methodology to push H-2A wages as low as possible.

Since 2010, the AEWR in each state has been based on a survey of farm operators conducted by the U.S. Department of Agriculture (USDA), commonly referred to as the Farm Labor Survey (FLS). While far from perfect, it is the best data set available on the wages of directly hired farmworkers in the United States. However, in August, the Trump administration’s USDA abruptly announced that it was discontinuing the FLS. A month later, DOL issued an interim final rule laying out a new AEWR based on data from a different data set, the Occupational Employment and Wages Statistics (OEWS) survey. OEWS is an inferior data set for agriculture and is not a valid survey for setting farmworkers’ wages, in part because it only surveys nonfarm employers—meaning farm labor contractors and other staffing firms. These nonfarm employers send farmworkers to different farms and pay them much less on average than the majority of workers who are hired directly by farm employers.

The Trump administration’s new regulation will drastically lower wages for migrant farmworkers hired through the H-2A visa program

The new Trump AEWR cuts wage rates dramatically and creates two artificial “skill levels” for each state which set H-2A wages at the 17^th percentile of wages surveyed (skill level 1) and at the 50^th percentile (skill level 2) based on five occupations DOL has determined are relevant in the OEWS. DOL estimates that 92% of H-2A workers will be paid at skill level 1 and 8% at skill level 2. The Trump DOL, in the preamble to its interim final rule, is fairly explicit about its desire to lower wages for H-2A farmworkers in order to benefit farm employers and increase H-2A hiring. And its move to eliminate the FLS and substitute it with the OEWS appears to be a key action taken to achieve that.

In addition, DOL has removed the previous requirement that employers pay for 100% of housing costs for H-2A workers. Currently, H-2A employers are required to provide housing for workers if they would not reasonably be able to return to their residences on a daily basis. This is important given that H-2A workers are so poorly paid that they cannot reasonably be expected to pay for their own housing. Further, H-2A workers are often employed on farms in remote areas that are not located close enough to a supply of affordable, accessible housing that still allows workers to report for duty for long hours in the fields. Reporter and worker advocates have documented many of the substandard conditions in employer-provided housing for farmworkers. However, instead of improving these problems, the AEWR lets farm owners take new deductions for housing out of H-2A workers’ paychecks—sometimes as much as 30% of their hourly pay.

Between wage cuts and housing deductions, DOL estimates that H-2A workers would lose over $1.7 billion under the new wage rule in 2026, amounting to $24 billion over the next 10 years as the program grows to over 500,000 jobs, as DOL predicts will occur. This would represent a shocking redistribution of income away from some of the country’s most essential and underpaid workers in order to line the pockets of farm employers.

However, we believe DOL’s estimates are incomplete because they fail to fully consider the new AEWR’s wage impacts, by not considering alternative methodologies and other scenarios that may result. For instance, DOL did not consider the impact on state minimum wage rates and whether the AEWR housing deduction may conflict with state laws, and DOL did not estimate the impact that a massive wage cut for H-2A farmworkers will have on U.S. farmworkers. In this post, we present new estimates that we hope will inform the public and DOL as to the true impact of the October 2025 AEWR. They should be considered low-end estimates because the interim final rule also permits farm operators to pay H-2A workers the AEWR for duties associated with higher-paying non-farm jobs for up to 50% of their work hours. This will put downward pressure on a number of occupations like construction and truck driving, but we have not attempted to calculate those losses to workers, and neither has DOL.

Trump’s H-2A wage rule will lead to a total pay cut of $4.4 to $5.4 billion for H-2A farmworkers and U.S. farmworkers

The interim final rule will significantly reduce H-2A workers’ wages. The average AEWR set for 2025 was $17.43 per hour, weighted by total weeks worked by state in 2024. The rule, however, proposes a two-tiered wage structure with far lower wages for 2026. The average skill level 1 and skill level 2 hourly wages would be $13.70 and $17.22, respectively, even without housing deductions. With housing deductions, the average level 1 and level 2 hourly wages would be $11.78 and $15.30, respectively.

In many cases, the new state AEWR wages are low enough to fall below state minimum wage laws, with the housing deduction lowering it even further. In some states, the AEWRs will fall below the state minimum wage only after housing deductions are subtracted. In all those cases, the state minimum wage supersedes the AEWR and sets the minimum H-2A wage. Currently, it is unclear how states will react to workers being paid below the state minimum after the housing deduction, and what guidance the federal government will provide with respect to it. For example, in Connecticut, the 2026 skill level 1 H-2A wage will be $15.93, but the 2026 state minimum wage will be $16.94. If the state fully enforces its minimum wage and prohibits pay rates from falling below the state minimum, then the lowest wage an H-2A worker could be paid legally is $16.94, and no housing deduction will be permitted. But if Connecticut or federal guidance allows the housing deduction to take the H-2A wage below the state minimum wage, then an H-2A worker in Connecticut could be paid as low as $14.88 per hour (i.e., the state minimum wage minus the $2.06 housing deduction).

It is possible that some states will take the position that the hourly wage rates paid to H-2A workers may not go below the state minimum after subtracting the housing deduction, while some states may allow the deduction, arguing that the federal AEWR regulation supersedes the state minimum wage law. The agricultural industry is likely to argue the latter, and the issue may end up in multiple state and federal courts. As a result of this uncertainty, our estimates consider both state minimum wage scenarios.

The first row of Table 1 estimates the annual pay losses for H-2A workers in 2026 under the interim final rule, assuming—as DOL does—that 92% of H-2A workers would be paid the skill level 1 wage. State minimum wage laws should not permit the hourly wage paid to H-2A workers to go below the state minimum wage; and in this scenario, H-2A annual wages would fall by $1.7 billion in 2026, or 25.8%. If state minimum wages are allowed to be undermined and the housing deduction drops the H-2A wage below the state minimum wage rates, the losses would be larger: a $2.1 billion or 31.5% annual pay loss. If some states prohibit and some permit the housing deduction to take the H-2A wage below the state minimum wage, then the total amount of annual pay losses would fall somewhere in between those two amounts.

Table 1

Reducing the AEWR for H-2A workers will also lower wages for U.S. farmworkers—one-third of whom are U.S-born citizens, according to the latest DOL survey. A fall in the H-2A wage will increase demand for H-2A workers, since employers can save significantly on labor costs if they hire them. As a result, it will become relatively more expensive to hire non-H-2A U.S. farmworkers. Employers will therefore reduce demand for U.S. farmworkers, putting downward pressure on their wages.

This is not hypothetical: Rutledge et al. found that a 10% increase in the AEWR caused an almost 2.8% increase in the wages of U.S. farmworkers. With those estimates, the authors estimated that a one-year AEWR wage freeze would reduce annual U.S. farmworker wages by $475 million. Using a similar methodology, we estimate the likely wage reductions for U.S. farmworkers due to the new rule (see the appendix for methodological details).

As we showed earlier, the H-2A wage reduction under a fully enforced minimum wage would be 25.8%. Based on the responsiveness of U.S farmworker wages to H-2A wage rates from Rutledge et al., the second row of Table 1 shows that the new rule could reduce U.S. farmworker annual wages by $2.7 billion, or 7.1%. The wage losses are again larger if states allow the housing deduction to push pay below the state minimum. In that case, U.S. farmworkers in 2026 would experience an annual pay cut of $3.3 billion, or 8.7%.

This means that farmworkers in total will see annual pay cuts of about $4.4 billion to $5.4 billion (9.9% to 12.1%), depending on the enforcement of state minimum wage laws. This amounts to a massive pay cut for farmworkers who are already some of the lowest-paid employees in the entire U.S. labor market, while working in one of the most difficult and dangerous jobs in the economy.

Conclusion and recommendations

Without question, the Trump DOL has established an AEWR that will lead to much lower pay for both U.S. farmworkers and those recruited from abroad through the H-2A program—and that appears to be its explicit intention. H-2A and U.S. farmworkers risk their lives and health in dangerous conditions like extreme heat in order to put food on the tables of U.S. households. These workers do not deserve a pay cut—they deserve a raise.

The Trump DOL is accepting input from the public through the Federal Register website on the AEWR interim final rule until December 1, 2025, which they are required by law to consider when crafting the final version of the rule. The Trump administration should reconsider its recent actions and listen to the many farmworker advocates and unions who have criticized the new AEWR for its negative impacts. However, the Trump administration has made clear it doesn’t care about the well-being of immigrant workers, or improving the quality of the jobs in which they’re overrepresented. In fact, Trump has expressed wanting to improve jobs and opportunities for native-born workers through the exclusion, deportation, or terrorizing of immigrant workers—something we know won’t work. The AEWR rule policy change, however, shows that the administration is still willing to help agribusiness more easily hire the most exploitable and underpaid labor possible—even if it decimates the jobs and wages of the one-third of farmworkers who are U.S.-born citizens.

Instead of taking money out of the pockets of U.S.-born and foreign-born farmworkers alike, the administration should at minimum:

• Reinstate the USDA Farm Labor Survey, which has been the best available source of government data on farmworkers’ wages and employment;
• Issue an updated AEWR rule with a methodology that reverts back to the previous rule that requires employers to pay H-2A workers no less than the average wage for field and livestock workers as reported in the FLS; and
• Prohibit farm employers from hiring H-2A workers for jobs where they will perform non-farm tasks like construction for more than a trivial portion of their work hours. Those workers should be hired through the H-2B program, or if they remain in the H-2A program, they should be paid the higher non-farm wage for the occupation for 100% of their work hours.

Business and Foreign Workers Division
Office of Policy and Strategy, USCIS
U.S. Department of Homeland Security
5900 Capital Gateway Drive
Camp Springs, MD 20746

RE: Department of Homeland Security, Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H–1B Petitions, Notice of proposed rulemaking, CIS Docket No. 2820-25, DHS Docket No. USCIS-2025-0040, RIN: 1615-AD01

The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank established in 1986 to include the needs of low- and middle-income workers in economic policy discussions. EPI conducts research and analysis on the economic status of working America, proposes public policies that protect and improve the economic conditions of low- and middle-income workers—regardless of immigration status—and assesses policies with respect to how well they further those goals. EPI submits these comments to the U.S. Department of Homeland Security (DHS) and its subagency, U.S. Citizenship and Immigration Services (USCIS), in response to their Notice of Proposed Rulemaking (NPRM) regarding the visa allocation process for H-1B visas. The proposed rule takes the current equal weighting random allocation process —often referred to as the H-1B “lottery”— for visas when more petitions than the number of visas available are filed when the application window opens, and modifies it to allocate H-1B visas to employers based on a weighted selection process that would generally favor the allocation of H-1B visas to higher skilled and higher paid applicants.

EPI has researched, written, and commented extensively on the U.S. system for labor migration, including in particular the H-1B program and other temporary work visa programs. EPI published a lengthy piece of research detailing the need to improve the way the U.S. Department of Labor (DOL) sets the H-1B wage levels,1 which we coauthored and have annexed to this comment as a separate PDF file. The report, however, did not address the flawed manner in which H-1B visas are allocated; a problem that goes hand-in-hand with H-1B prevailing wage levels that have been set artificially low for many years.

In 2016, President Donald Trump campaigned on reforming the H-1B program and immediately promised to do so after becoming president-elect. Yet virtually no substantive action was taken until just weeks before the 2020 election. At that time, the U.S. Department of Labor (DOL) and USCIS/DHS issued three rules, a DOL Interim Final Rule (IFR) updating the H-1B prevailing wage levels,2 a USCIS IFR modifying the definition of H-1B “specialty occupation,”3 and an NPRM, on the H-1B allocation process by lottery.4 While DHS and DOL have the requisite legal authority to make these regulatory changes, the timing and process of their issuance made them susceptible to procedural legal challenges. On December 1, 2020, a federal court in California struck down both the DOL prevailing wage IFR and USCIS IFR.5 During his 2020 campaign, President Biden’s immigration plan stated he would “reform temporary visas to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages,”6 but the Biden administration never took any steps to propose an updated allocation scheme for H-1B visas to implement that campaign promise.

EPI generally supports the main substance of this NPRM and believes it improves the current allocation process for H-1B visas, which is random and susceptible to companies that have learned how to “game the system” to unfairly obtain large numbers of H-1B visas at the expense of other companies seeking to hire H-1B workers. We do not believe that it is the best method for allocating visas because high shares of petitions will still be awarded to firms paying their H-1B workers at below-median wage rates, but it is reasonable and preferable to the status quo. If the NPRM or final rule issued pursuant to this NPRM is challenged in court based on DHS’s interpretation of the statute that establishes how H-1B visas are allocated, then DHS should consider alternate methods to achieve the same goal of allocating visas by wage levels. These comments will suggest one alternative way to do it.

This proposed rule will incentivize H-1B employers to pay their migrant worker employees at fairer wage rates that are commensurate with local U.S. wage standards and result in rewarding employers that recruit and hire higher-skilled workers and pay higher salaries with additional visas and workers. That in turn will improve the program by reducing the number of H-1B workers who are underpaid according to U.S. wage standards—but without reducing the overall number H-1B visas that are issued—and will also better protect the wages of similarly situated U.S. workers. The proposed rule will also increase the overall skill mix and quality of the pool of H-1B workers, thereby boosting the impact of the H-1B program on the U.S. economy. As a result, the proposed rule helps address a major critique EPI has long held about the program—that it is exploited by firms that use it to legally undercut U.S. wage standards—and which Members of Congress from both major parties have attempted to address through proposed bipartisan legislation to reform H-1B, which includes a preference allocation system for H-1B visas, one that is more detailed and includes additional factors based on other policy priorities, unlike the one in the proposed rule based on a weighting of wage levels).7

It must also be noted at the outset of these comments that actions taken both recently and in 2020 by federal agencies with respect to wages for migrant workers in temporary work visa programs have been inconsistent and confusing. While DOL took action with its 2020 proposal and IFR that—if it had not been struck down—would have raised wage rates for underpaid migrant workers in the H-1B, H-1B1, and E-3 visa programs, DOL almost simultaneously issued a new wage rule for the H-2A program that would have cut wages for the migrant farmworkers in that program.8 DOL has now in 2025 again issued another rule for H-2A visas that will drastically cut the wages of farmworkers and lead to billions of dollars in wages being transferred from poor farmworkers to farm owners and operators, and lead to reduced opportunities for U.S. farmworkers, including the 30% of farmworkers who are U.S.-born citizens.9 This is troubling and misguided, especially considering that DHS at the end of the first Trump administration had determined that farmworkers were part of the U.S.’s critical infrastructure workforce, and the Department of State has designated H-2A workers as “a national security priority”—because of their contribution to stabilizing the food supply chain during the Coronavirus pandemic.

Both DHS and DOL should issue regulations that lead to improved labor standards and higher wages for all work visa programs, and not treat workers differently based on their education levels, occupations, and nationalities. All temporary migrant workers deserve to be paid fairly for their labor and no work visa programs should operate essentially as employment law loopholes that permit employers to legally underpay migrant workers.

The first major section of these comments addresses the flaws in the current H-1B program, and the second section specifically addresses elements of the NPRM.

The H-1B program is an important avenue for attracting skilled, talented workers from abroad—but is deeply flawed and in desperate need of reform

The H-1B program provides temporary, nonimmigrant U.S. work visas for college-educated workers and fashion models from abroad. While no one can deny the importance of attracting skilled, talented workers to the United States, the reality is that some of the biggest beneficiaries of the H-1B program are outsourcing companies that have hijacked the system—using it to pay low wages, replace thousands of U.S. workers with much-lower-paid H-1B workers, and to send decent-paying technology jobs abroad.10 Outsourcing companies, however, are not the only abusers of the system: The vast majority of employers who use H-1B visas are legally allowed to pay their H-1B workers at wage levels below the local median wage for the occupation.

The major structural, programmatic flaws in H-1B are the following:

U.S. employers do not have to recruit U.S. workers before hiring H-1B workers

Employers and corporate lobby groups claim that they use the H-1B primarily to bring in the “best and brightest” workers from abroad to fill labor shortages when they can’t find willing and available U.S. workers, especially in science, technology, engineering, and math fields (STEM), but the reality is that:

• Under current law, employers are not required to recruit and hire U.S. workers or prove they are experiencing a labor shortage before hiring H-1B workers.
• “H-1B-dependent” employers—those filling 15% or more of their U.S. jobs with H-1B workers—are required to recruit U.S. workers first, but they all get around the requirement by exploiting a cheap and easy loophole: they can hire an H-1B worker without recruiting U.S. workers if the H-1B worker holds a master’s degree or receives an annual salary of over $60,000.
  • For comparison, $60,000 per year is $56,810 less than the national average wage for all workers employed in computer occupations.11 Analysis of the FY 2024 DOL Labor Condition Application disclosure data shows that employers exempt themselves from recruiting U.S. workers for effectively all of H-1B positions (over 99%).12

U.S. employers can legally underpay H-1B workers

For years, corporate lobbyists and other H-1B proponents have claimed that H-1B workers cannot be paid less than U.S. workers because employers must pay H-1B workers no less than the “prevailing wage.” That is true only as a tautology. The reality is:

• Employers have the option of paying the prevailing Level 1 “entry-level” wage or Level 2 wage, which are between 20-40% less than the local median wage (Level 3) that employers pay workers in the occupation in the local region.
• As DHS notes in Table 12 of this draft rule, the five-year average of cap-subject beneficiaries who were paid at the two lowest wage levels—both of which are set below the local median wage—was 83% for fiscal years 2020-2024.
• While the wage level is supposed to correspond to the H-1B worker’s education and experience, in practice the employer gets to choose the wage level and the government doesn’t verify whether the two reasonably correspond to each other.

H-1B workers are often exploited and some arrive to the United States in debt after paying hefty recruitment fees

H-1B workers sometimes pay hefty fees to labor recruiters, which means that many arrive virtually indentured to their employer, fearing retaliation and termination if they speak out about workplace abuses or unpaid wages. And widespread abuses have been documented—even human trafficking and severe financial bondage.13

H-1B workers do not have sufficient job mobility between employers

The H-1B visa itself is owned and controlled by the employer; an H-1B worker who is fired or laid off for any reason becomes deportable unless they can find new employment within 60 days. This arrangement results in a form of indentured servitude.14 During waves of mass layoffs in the tech industry, numerous stories have been publicly reported about the precarious situations and impossible choices that thousands of H-1B workers are left to face.15 Thus, H-1B workers have good reason to fear retaliation and deportation if they speak up about wage theft, workplace abuses, or other working conditions like substandard health and safety procedures on the job. While H-1B workers have the ability to switch jobs if they can find another employer willing to petition for a new visa for them (sometimes referred to as “portability”), and have 60 days to find a new employer if they are fired, these avenues are not straightforward enough and inadequate to mitigate the power that employers have over the right of their H-1B workers to remain employed in the United States.16 These protections should be improved.

H-1B workers are not allowed to self-petition for lawful permanent residence

The ability of H-1B workers to become lawful permanent residents and remain in the United States is entirely at the whim of their employers. Even after working for an employer for six years in H-1B status, the employer has the power to decide if an H-1B worker can remain in the country—in many cases after an H-1B worker has established firm roots in the United States. That power keeps H-1B workers from complaining and asserting their employment rights. To remedy this wrong, H-1B workers should be allowed to petition on their own for permanent residence after a short provisional period—no longer than 18 months—and independent from their employer.

Outsourcing companies are using the H-1B program to underpay H-1B workers, replace U.S. workers, and send tech jobs abroad

As we have documented in the annexed report and numerous other commentaries and testimonies, roughly half of the top 30 employers of H-1B workers in most years are not innovative high-tech firms like Apple and Google.17 Some of the biggest users of the H-1B visa are staffing firms that specialize in information technology (IT) and accounting and that pay H-1B workers the lowest wages legally allowed, and outsource their H-1B employees to third-party firms. Some of those firms also have a business model dependent on sending jobs offshore where labor costs are lower.

Typically in this scenario, H-1B workers do computer and engineering work at the office of a U.S. employer but are employed by an outsourcing company, some of which are based abroad or have major operations abroad.18 The many reported cases of U.S. workers being laid off and replaced by H-1B workers have all been facilitated by this arrangement. In multiple incidents, the H-1B workers have been hired with annual wages of around $30,000 to $40,000 less than the workers they have replaced. Before they are laid off, the U.S. workers are often forced to train their own H-1B replacements as a condition of their severance packages; this is euphemistically known as “knowledge transfer.” Major, profitable U.S. employers like Disney and Toys “R” Us—as well as public employers and institutions like the University of California and regulated utilities like Southern California Edison and Northeast Utilities—have laid off thousands of U.S. workers who were forced to train their own replacements. Eventually, many of the outsourced jobs that are filled by H-1B workers get moved offshore.19

Contrary to the popular narrative proffered by corporations that support expanding and deregulating the H-1B visa program—the staffing firms that use H-1B visas are not using them to keep technology jobs in the United States—instead they are using them precisely to facilitate the offshoring of as many of those jobs as they can. That is in fact, the business model of those firms. News reports, including from Bloomberg and the New York Times, have shown that outsourcing companies “game the system” in order to obtain a high share of H-1B visas, which leaves fewer available for the firms that directly employ H-1B workers.20

Allowing outsourcing companies to hire H-1B workers lets employers utilize the immigration system to degrade labor standards for skilled workers—as a result, they should be barred from obtaining H-1B visas

The outsourcing/staffing model of employment generally may increase the incidence of employment law violations by separating the main beneficiary of the labor provided by H-1B workers—the third-party firm that hires the outsourcing firm, i.e. the “lead” employer—from the H-1B workers who perform the work. Firms that rely on outsourced H-1B workers are a textbook (if extreme) example of what former DOL Wage and Hour administrator David Weil calls a “fissured” workplace, where the relationship between the worker and the lead employer is fissured, or broken, via the use of a temp agency or subcontractor21 (in this case the H-1B outsourcing firm). Research shows that fissuring leads to a wage penalty for workers who are subcontracted, employed as temps, and work for staffing firms,22 in part because the subcontractor keeps a percentage of the wages earned by the workers. It is also common knowledge that employers use this model to avoid paying for benefits like health care, retirement funds, and to avoid liability for labor violations. Because the staffing and outsourcing model contributes to the fissuring of the labor market, it should not be allowed as part of the U.S. immigration system—not in H-1B or in any other temporary or permanent immigration programs.

Analysis of the NPRM, “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions”: Updating the H-1B lottery

We now turn to the NPRM, which proposes to update the random lottery allocation system for cap-subject H-1B petitions. The H-1B statute at 8 USC §1184(g)(3) requires that H-1B visas or statuses “be issued … in the order in which petitions are filed for such visas or status.” However, the practical realities of the H-1B annual numerical limit or “cap” and the way that USCIS receives petitions for H-1B visas, renders this impossible to implement in practice—leaving USCIS little choice other than to propose a rational alternative that is consistent with the broader goals and intent of the H-1B statute.

There is no feasible way for USCIS to meet the statutory requirement of allocating H-1B visas “in the order in which petitions are filed.”

At present, when demand for H-1B visas immediately exceeds the annual limit of 65,000 for cap-subject petitions and annual limit of 20,000 visas reserved for foreign graduates of U.S. universities who have obtained at least a master’s degree—USCIS allocates the visas by a random lottery where each petition has an equal chance of being approved, regardless of occupation, region, or that salary that will be paid to the H-1B worker. This process is utilized because, since fiscal year 2014, USCIS has received far more H-1B petitions that are subject to the annual cap in the first five days of the eighteen-month application window, than the 85,000 available slots for that fiscal year. Since so many petitions are submitted to USCIS nearly simultaneously, it is impossible for USCIS to determine the order in which the petitions were filed, a necessary prerequisite to adequately comply with the H-1B statute’s requirement that H-1B visas or statuses be allocated to employers “in the order in which [those] petitions [were] filed for such visas or status.” Therefore, USCIS allocates them at random via an electronic lottery, which appears to be a choice of convenience and not a well-reasoned response to a phenomenon unanticipated by the statute. The process has been in place since FY 2008.

However, considering the ambiguity of 8 USC §1184(g)(3) and the fact that the letter of the statute cannot be adhered to in practical terms, other interpretations about how to allocate H-1B visas can be equally reasonable so long as they are consistent with the intent of the H-1B statute.

The prevailing wage and its enforcement is the most important protection for labor standards in the H-1B program

DHS should measure the merits of any allocation scheme based on how well it advances the administrative efforts to meet the H-1B program’s intent, “to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce.”23 As we’ve described above, and elsewhere, one of the most effective ways for the H-1B program to meet this intent is to employ a labor market test that includes good faith recruitment from the U.S. domestic supply and a requirement that employers hire qualified applicants before an H-1B application is approved. Absent a labor market test, under current law, DHS and other agencies involved in H-1B governance, DOL, the State Department, and the Department of Justice (DOJ), should craft rules to move the program closer to fulfilling its intent. 

The current allocation scheme, based on a random lottery, undermines the government’s efforts to fulfill the program’s intent. Replacing it with a better scheme, as proposed by the NPRM, would improve program outcomes: better addressing labor shortages and increasing the overall skills of the H-1B worker population.

As DHS drafts its final rule, the agency should consider and rank alternate allocation schemes based on how well their outcomes meet the program’s purpose. Allocation schemes that do a better job at filling pressing labor shortages should be ranked higher. Since there is no direct way to measure the severity of labor shortages, proxy measures must be used. The best proxy for this purpose is the migrant worker’s wage premium compared to comparable U.S. workers. The larger the wage premium, the more likely it is that the migrant worker brings specialized skills that cannot otherwise be obtained from the U.S. workforce. Migrant workers earning larger premiums are more likely to complement, rather than compete with, U.S. workers.

The prevailing wage is the most important worker protection in the H-1B program and its effective administration is essential. The H-1B program laws and rules specify that the prevailing wage for each position is calculated using three attributes: (1) occupational classification; (2) worksite geography; and (3) level. The employer selects these three variables based on the position description they are trying to fill, not the actual worker’s skills. In virtually all Labor Condition Application (LCA) filings, employers use the Office of Foreign Labor Certification (OFLC) Occupational Employment and Wage Statistics (OEWS) data or a private wage survey to determine the position’s prevailing wage, rather than requesting that one be provided by the National Prevailing Wage Center, as employers are permitted to do.

Allowing employers to interpret the key factors that determine the prevailing wage introduces errors. First, employers interpret the occupation and level differently, even in cases when they position is the same. Further, granting employers substantial front-end discretion over choices when they have significant conflicts of interest invites widespread non-compliance, which can only be remedied through strong back-end enforcement. But the government’s back-end enforcement has been nonexistent. DHS’ worksite visits and Requests for Evidence may have improved compliance with (2) worksite geography. However, no government agency ever ensures that the employer’s choice of (1) occupational classification and (3) level, accurately reflects the position being filled, or the H-1B worker’s actual activities in the position. Any employer that misclassifies the occupation or level, or both, significantly undermines program integrity, regardless of whether the misclassification is intentional or inadvertent. Public disclosure data indicate that some employers are likely exploiting these vulnerabilities on a mass scale, stealing wages from H-1B and U.S. workers alike.

Examples from existing H-1B data demonstrate the failure of the government’s prevailing wage regulations in achieving their raison d’être, which is protecting workers, labor standards, and the integrity of the labor market.

Take this first example which comes from one of Microsoft’s H-1B employees, which can be found at DOL LCA Case Number I-200-23087-882196, and which was selected and approved by USCIS for an H-1B visa in the FY 2024 lottery.24

Table 1

Microsoft, one of the top ten H-1B employers, placed a 35-year-old worker with a doctorate degree into a position it classified at Wage Level 1. Based on their age, the H-1B visa recipient likely has at least 7 years of experience in addition to holding a doctoral degree. Yet, they are filling an entry-level position, one that, according to DOL’s prevailing wage guidance, would be appropriate for an “internship” or a “worker in training.”25 This appears to be an example of wage-level misclassification that can only be remedied through tighter rules and stronger enforcement.

The second example is for one of Deloitte’s H-1B positions, which can be found at DOL LCA Case Number I-200-23258-349652, which was certified by DOL in FY 2023.26

Table 2

Deloitte Consulting, another one of the top ten H-1B employers, classified its Senior Consultant job in Philadelphia as an entry-level position, one that, according to DOL’s prevailing wage guidance, would be appropriate for an “internship” or a “worker in training.” Classifying a Senior Consultant at Wage Level I directly conflicts with DOL guidance that states that job titles with “‘senior’ (e.g., senior programmer)” should be classified at Wage Level III. Yet, the DOL certified the LCA despite the employer’s apparent wage-level misclassification.

The Deloitte case also highlights problems with the wage surveys used to source prevailing wages. In this case, the corresponding prevailing wage for Standard Occupational Code (SOC) 15-1299.08 (Computer Systems Engineers/Architects) is extremely low by any benchmark. The National Association of Colleges and Employers (NACE), a professional association of university-based career services officers and business campus recruiters, conducts regular wage surveys of recent bachelor’s degree graduates across the country. For the class of 2024, the average starting salary for computer and information sciences majors was $88,907.27 The DOL H-1B prevailing wage of $61,838 is $27,000 less, offering Deloitte a 30% discount over the market rate for recent graduates.

This demonstrates how lax DOL oversight and guidance on employers’ occupational code choices can lead to market distortions. Had Deloitte selected SOC 15-1252, Software Developers, which has a similar occupational profile, the prevailing wage rate it would have been required to pay was 30% higher.

Given these operational realities, DOL and DHS should make it a priority to implement a comprehensive back-end compliance system that includes random audits, to validate that the occupation and prevailing wage level accurately match the H-1B worker’s actual activities in the position. Given DOL’s expertise in labor standards enforcement and occupational duties, and the Wage and Hour Division’s (WHD) primary role in enforcing the promises made by employers on LCAs, DOL should take the lead on such compliance efforts, with DHS possibly partnering in support of DOL. Any enforcement of prevailing wage levels, including random audits, will require additional funding and staffing for DOL. As a result, the administration should make a request to Congress for new funds to hire additional WHD investigators. (A recent report shows that the number of WHD investigators is at 611, an all-time low,28 likely due in part to the administration’s funding and staffing cuts at DOL.)

Accurately identifying prevailing wages is also critical to ensuring the effectiveness of the allocation scheme. The government has recently announced significant efforts, such as the forthcoming DOL proposed rule to update prevailing wage levels, as well as Project Firewall, an enforcement initiative, to improve program integrity. While we believe such initiatives may be a positive step, they remain only aspirational—and may be difficult to implement given significant DOL funding and staffing cuts, and we worry about DOL following through, given DOL’s actions on other fronts that we are critical of—thus our analysis is based on the current state of program implementation.

A successful H-1B allocation scheme depends on accurately identifying and labeling prevailing wage levels and occupations

The key factor for the allocation scheme is determining the foreign worker’s wage premium, which is calculated as the difference between the H-1B worker’s wage and that of a similarly situated U.S. worker. Identifying the H-1B wage is straightforward since the proposed rule requires employers to submit the proffered wage in their electronic registration, rather than just the wage level selected at the LCA level. The imprecision of the employer’s choice of both occupation and level makes benchmarking against similar U.S. workers problematic since the agency cannot ensure they are, in fact, similar.

The proposed rule requires employers to map their proffered wage to a wage level based on the SOC and geography. This step eliminates the most problematic element in the prevailing wage process, i.e. the employer’s interpretation of the position’s level. However, the employer’s interpretation of the occupation and the possibility of its misclassification remain problematic. The interpretation of occupations is non-standard, and different firms would likely map the same exact position to various occupations. For example, firms may interchange a relatively low wage six-digit level occupation, such as 15-1211 Computer Systems Analysts, which at the national level has a Level III wage of $103,790, with the higher wage of 15-1252 Software Developers, which has a Level III wage of $133,080 at the national level.29 An employer paying an H-1B worker $104,000 would be Wage Level III if they select the position of Computer Systems Analyst, but Level I if they identified the position as Software Developer.

The agency can mitigate the adverse effects of occupational misclassification on the proposed allocation scheme by having employers use a four-digit, instead of a six-digit, SOC to identify the wage level for registration purposes. Employers would select the six-digit occupation with the highest median wage within its four-digit SOC family, and then map their proffered wage to the corresponding wage level. For example, applications with any computer occupation (15-12XX) would map their wage levels to 15-1221, Computer and Information Research Scientists. Correcting occupational misclassification this way is analogous to the proposed rule’s handling of multiple worksite locations to, “prevent gaming of the weighted selection process…”30

Using a wage level prioritization allocation for H-1B visas is reasonable and consistent with the H-1B statute, and it should be the preferred method for allocation

The program statute states that the visa is open to any “specialty occupation” and that prevailing wages should be adjusted based on “the occupational classification in the area of employment.”31 Congress wrote this language in recognition that the wage structures of occupations vary, e.g., accountants are typically paid lower wages than software developers, and that the cost of living varies across geographies, e.g., the California Bay Area has a much higher cost of living than Cleveland, Ohio. The allocation scheme should favor registrations that offer the highest wage premium—as compared to the highest wage amount—measured after controlling for occupation and geography.

USCIS’s proposed rule in 2020 and final rule in 2021 would have achieved this by allocating H-1B petitions first to employers who file petitions that pay Level 4 wages—the highest H-1B wage level—and then to petitions with the lower wage levels in descending order (Level 3, Level 2, and then Level 1).32 Since higher wages are a valid proxy for higher skills in this context,33 the proposed allocation system by wage levels would have resulted in the highest-skilled and best paid applicants with in an occupation being selected for H-1B petitions from the available annual pool of petitions. In fact, this formulation continues to be our preferred allocation scheme for H-1B petitions, although we would modify it to include the requirements from the current NPRM that employers list the proffered wage level on their registration filing that would then be mapped to the appropriate wage level, and when a position is located in multiple geographic locations, using the lowest wage level among the locations as the proffered wage. Had it gone into effect, the rule would have resulted in the selected H-1B workers being paid at higher wage levels, and those higher wages would have helped safeguard U.S. wage standards in major H-1B occupations like information technology and other computer occupations. This is essential given that workers in those occupations have seen virtually no real wage growth since the late 1990s.34 Wage levels are an appropriate proxy for skill since they account for wage variations by geographic location (higher versus lower cost areas) and occupation.

The statutory language at 8 USC §1184(g)(3) is ambiguous and silent as to how visas should be allocated if they cannot be issued in the order that they were filed, and it offers no additional insight into what Congress meant by “filed.” The filing of an H-1B petition is the most reasonable explanation of what “filed” means, but since allocating H-1B visas in the exact order in which they were filed is rendered impracticable by virtue hundreds of thousands of petitions being submitted in one day or over the course of a few days, creating an allocation scheme based on wage levels is more reasonable than creating a random lottery. In addition, a wage level-based allocation scheme is reasonable because it is consistent with the intent of the H-1B visa statute, which is to provide “American businesses” with “highly skilled, specially trained personnel to fill increasingly sophisticated jobs for which domestic personnel cannot be found”35 (emphasis added). Since employers are not required to test the labor market for available U.S. workers before hiring H-1B workers (as discussed in section I), prioritizing higher-skilled, higher-paid H-1B workers also ensures that the employers facing a true shortage of talent—as indicated by the higher wage levels they are willing to pay—have a better chance at obtaining an H-1B visa, which also furthers the goals set out in the statute.

The proposed weighted lottery is reasonable and an improvement from the status quo but will not achieve an ideal outcome

With all of that being said, including our preferred proposal for an allocation scheme discussed in the preceding section, we nevertheless generally support DHS’s proposed weighted allocation scheme because it is reasonable and a measurable improvement over the current scheme in meeting the H-1B program’s intent. It will shift the total number of H-1B petitions that are selected where employers will be required to pay wage rates that are higher than the local median wage for the occupation (i.e., Level 3 and Level 4 wages).

Under the current random allocation scheme, DHS shows in Table 13 of the NPRM that petitions at every wage level have a 29.59% probability of being selected. However, given that so many more petitions have wages promising to pay Level 1 and Level 2 wages, the random lottery results in an outcome where 83% of H-1B beneficiaries selected are at Level 1 and Level 2, as shown in Table 12, with only 17% selected at Level 3 or 4. DHS notes that moving to a weighted lottery would result in the probability of the wage levels being selected shifting towards an increasing the likelihood that petitions at Level 3 and Level 4 are selected: “15.29 percent [probability] for level [1], 30.58 percent for level [2], 45.87 percent for level [3], and 61.16 percent for level [4].”36

Assigning greater weight to petitions at Level 3 and Level 4 will bring implementation of the H-1B program closer to the intent of the original statute, while still retaining a high degree of randomness and permitting significant numbers of petitions at Level 1 and Level 2 to be selected. An allocation process that uses wage levels, rather than a prioritization scheme that uses individual salary levels, will also likely result in H-1B petitions being allocated among a broad mix of occupations and regions, which we believe is a preferred outcome—while also prioritizing petitions for the most highly-skilled workers in each of the occupations.

However, we believe DHS should consider and model other alternatives to H-1B petition allocation that they believe are reasonable, lawful, and help align the H-1B program with the intent and goals of the statute. Other allocation methodologies have also been proposed publicly by advocates; we would welcome discussion, modeling, and analysis of those proposals by DHS.

But given the information that we have available to us now, as noted in the preceding section, we believe that the wage level prioritization in DHS’s proposed rule in 2020 and final rule in 2021 would be preferable. By first allocating H-1B petitions to employers who file petitions that pay Level 4 wages and then to petitions with the lower wage levels in descending order, the result would be that the highest-skilled and best paid applicants within an occupation would be selected for H-1B petitions.

Proposals for a prioritization scheme based solely on compensation levels will favor a small number of occupations and regions, and should be rejected

Some advocates have called for an H-1B allocation proposal that ranks petitions by actual salary level—rather than a wage level that accounts for skill, occupation, and geography—with the latest being published in September 2025 by the Institute for Policy.37 The author of the proposal, Jeremy Neufeld, argues that DHS’s weighted lottery will result in IT outsourcing firms gaining 8% more H-1B visas, that F-1 visa graduates would receive 7% fewer visas, and that the H-1B median salary would increase by just 3%.

Given our understanding of Neufeld’s proposal and modeling, his analysis does not exactly match DHS’s current proposal, calling into question his results. Neufeld appears to have utilized the wage levels selected by employers at the LCA level—rather than what DHS proposes—which is to take the “proffered” wage; i.e. the actual salary that the employer intends to pay the beneficiary—and use that to determine the appropriate wage level listed on the registration that will be weighted, according to the OEWS wage levels for the occupation and region. We know from our own reviews of H-1B LCA and petition data that in many cases the actual salary proffered by employers would correspond to a higher wage level according to OEWS wage levels by occupation and region. (In other words, an employer may select Level 2 but pay a wage that actually corresponds to Level 3 or 4.) Why this occurs reveals how the administrative process is flawed, but the fact remains that any modeling of DHS’s weighted lottery would require mapping proffered wages to wage levels to achieve a reliable result.

We believe that Neufeld’s proposal based on actual salary levels would have certain consequences, not all of which are accounted for in his September 2025 publication or an earlier publication that discusses multiple proposals for an H-1B allocation scheme, including one based solely on “compensation ranking.”38 In that report, Neufeld concedes that a compensation-based ranking of petitions would result in more H-1B petitions being awarded to employers in higher-cost regions of the United States. Those regions would mostly include the urban areas on both coasts of the United States, where the cost of living is higher.

The goal of the H-1B program is to fill labor shortages. Occupational shortages/surpluses are not measured by absolute wages, and a high absolute wage for a specific occupation is not a reliable indicator of a labor shortage. Instead, as a 2001 National Academies of Sciences, Engineering, and Medicine study explains, shortages are observable: “When demand exceeds supply in a particular occupation, compensation tends to rise relative to compensation in other occupations that require similar education, effort, and working conditions” (emphasis added).39

In his analysis, Neufeld does not state explicitly that a larger share of H-1B petitions would go to certain occupations. We believe those are most likely to be computer and engineering occupations, which will crowd out petitions for H-1B workers who would be employed in occupations like teachers, attorneys, accountants, and doctors (especially doctors employed in rural areas). In other words, a compensation-based ranking would mostly benefit technology companies like Google, Microsoft, Amazon, and Meta, that employ H-1B workers in computer occupations who reside on the coasts of the United States.

Ample evidence shows that computer occupations are not experiencing a labor shortage, so prioritizing their allocation would undermine rather than advance the H-1B program’s goals. Wage growth for computer occupations has been stagnant, technology firms have been laying off skilled software employees by the tens of thousands, and recent U.S. computer science graduates are facing the worst job market in a generation, with record levels of unemployment and underemployment, just as U.S. computer science students earn degrees in their highest numbers.40 The latter fact is especially salient since the vast majority of H-1B approvals, 83% according to Table 12 in the NPRM, are for Level 1 and 2 positions, the very jobs that the large surplus of computer scientists in the U.S. should fill. Neufeld’s proposed scheme would prioritize computer occupations—the very job market experiencing a labor surplus rather than a shortage.

Neufeld proposes accounting for the geographical outcome by “adjusting for regional price parity can address geographic heterogeneity without significantly reducing the economic benefits of compensation-based ranking,” and further suggests that DHS make age adjustments, because compensation-based ranking “may not account for the full future potential and lifetime contributions of younger workers who start at lower salaries but have high growth potential.” The age adjustment proposal is not expounded on further, so we are not sure how it would operate in practice.

We have two reactions to this. First, we believe that an allocation scheme solely based on compensation would be clearly inconsistent with the H-1B statute on its face, and thus require Congressional action (as opposed to a weighted or wage level lottery that can be implemented by DHS regulation). The H-1B statute at 8 U.S.C. § 1182(n)(1)(A)(II) clearly states that the H-1B prevailing wage should take into consideration “the occupational classification in the area of employment,” unless it is based on a wage that is already being paid to an employer’s similarly situated U.S. (non-H-1B) employee. Using wage levels that reflect occupation and region are clearly consistent with the statute, and thus more likely to be upheld if challenged in court. A compensation-based ranking scheme reflects neither, and while Neufeld attempts to account for the “area of employment” language in the statute with a suggestion of “adjusting for regional price parity,” he does not explain how that would work in practice—and in any case, it would likely insert an additional and unnecessary layer of complexity to the H-1B registration and allocation process.

Second, we believe that an H-1B program that permits a broader range of occupations is preferable, rather than one that mostly awards H-1B petitions to tech companies. Employers in various industries need a viable pathway to hire skilled talent from abroad and should thus not be closed off from the U.S.’s main visa program that could allow them to do so. We believe that all occupations and contributions of workers have value—and that the H-1B program was designed to permit employers to hire the most skilled and talented workers within a broad range of occupations and industries—not simply as a “computer visa” that almost exclusively benefits tech and information technology companies.

Early career foreign graduates of U.S. universities should have a pathway to employment in the United States that leads directly to a green card

Numerous other commenters, including Neufeld, raise the concern about wage-level-based allocation schemes crowding out younger and early career migrant workers who are just starting their careers. We agree that skilled and talented younger and early career workers, including many of those who graduate from top U.S. universities, deserve a pathway to employment in the United States. However, the H-1B program was created to help employers fill labor shortages with skilled workers, not as an early career development program for foreign students that leaves them in an indentured status for years, if not decades.

There are better proposals that would allow employers to recruit and hire foreign graduates of U.S. universities, including the Keep STEM Talent Act, which would put foreign students on a direct path to a green card if they have a job offer from a U.S. employer that pays the local median wage.41 Nevertheless, early-career workers are not excluded from the H-1B program and would have a legitimate opportunity for an H-1B visa under the weighted allocation, even if they were paid a Level 1 or Level 2 wage. Many early career graduates who are presently paid at Level 1 and Level 2 wages, especially those with advanced degrees, should be offered Level 3 and Level 4 wages, which would make them even more likely to be selected through a weighted allocation scheme. And employers who are currently underpaying their H-1B employees may also change their behavior and offer higher wages to increase their chances in the weighted lottery.

It should also be noted that advocates for more H-1B petitions being approved at below-median wage levels ignore current employment realities, wherein recent college graduates in computer occupations are experiencing unemployment rates that are “more than double the unemployment rate among recent biology and art history graduates, which is just 3 percent,” as the NY Times recently reported. The Times cited statistics from the Federal Reserve Bank of New York—noting that “[a]mong college graduates ages 22 to 27, computer science and computer engineering majors are facing some of the highest unemployment rates, 6.1 percent and 7.5 percent respectively”42—and pointed to examples of skilled graduates applying to hundreds of jobs with little luck. Entry-level H-1B jobs at wage levels 1 and 2 are exactly the types of opportunities that should be available first to U.S. workers, including both U.S.-born citizens and permanent immigrants with green cards. Yet, the H-1B program undermines their opportunities by allowing employers to underpay temporary migrant workers with a precarious immigration status that employers can exert an extraordinary level of control over.

The H-1B random lottery benefits outsourcing companies that pay low wages and game the system, making it more difficult for start-up and direct-hire firms to hire H-1B workers

The current random lottery allocation may give each petition equal odds, but it does not give each firm equal odds. The main beneficiaries of the current random lottery allocation process have been H-1B employers that are staffing firms, which are more likely to pay H-1B workers at the lowest wage rates.43 The H-1B staffing firms use an outsourcing model to send their H-1B employers to third-party worksites, and earn their profits by undercutting local wage rates for college-educated workers. These companies, as Bloomberg and the New York Times reported, “have obtained many thousands of the visas — which are limited to 85,000 a year — by learning to game the H-1B system without breaking the rules.”44 The “system” the Times is referring to here is the H-1B random lottery.

Real-world scenarios illustrate how the random lottery has favored outsourcing firms over those seeking truly skilled workers. The outsourcing firms have most of their workforce in low-cost countries such as India, and employ hundreds of thousands of workers. If an outsourcing firm seeks 1,000 approved H-1B petitions in any fiscal year, it will submit 3,000 petitions on behalf of its workers located in India. Since the odds have been roughly one-in-three, the random lottery rewards the outsourcing firm with the 1,000 approved petitions it sought. Since many of the workers the outsourcing firms seek to hire have relatively lower skills—as evidenced by being assigned wage rates that are almost exclusively at Level 1 and Level 2—they are largely interchangeable workers, and it matters little to the outsourcing firms which specific one thousand workers are selected. Compare this to a start-up firm seeking to hire a specific engineer with a truly special skill set that it is willing to pay a Level 4 wage to obtain; the start-up firm has only a 33% percent chance of winning the lottery. The outsourcing companies, on the other hand, flood the lottery with multiple applications to obtain thousands of visas per year, which crowds out start-up firms and employers with legitimate needs that employ workers directly and pay H-1B workers at higher wage levels.

It’s important to emphasize that the DHS rule that moved to a beneficiary-centric registration process to reduce lottery abuse perpetrated primarily by small IT staffing companies did nothing to eliminate the abuse described above by outsourcing firms. DHS must enforce the requirement that employers have a bona fide job for the prospective H-1B worker and begin rejecting and revoking petitions in cases where employers maintain large numbers of “travel-ready” and “visa-ready” workers for speculative positions.45

USCIS should consider alternate approaches in case of a legal challenge.

Some commenters and critics of the proposed H-1B allocation process may contend that the statutory language at 8 USC §1184(g)(3) does not authorize DHS to update the H-1B allocation process by wage level as detailed in the proposed rule, because DHS would no longer be issuing H-1B visas in the order in which the petitions were filed. While we disagree with this assessment as discussed herein, DHS should nevertheless explore alternative methodologies for wage-based allocation that it can propose in a new rulemaking if the proposed rule is the subject of a successful statutory challenge in federal court.

One simple new methodology, for example, could consist of having staggered filing deadlines for petitions by wage levels. 8 USC §1184(g)(3) is silent as to whether there can only be one filing period or whether there can be multiple. Therefore, USCIS could have a first filing period, where only petitions with jobs paying Level 4 are considered. Once all the Level 4 petitions are submitted and approved, then a second filing period at a later date could be set to receive only petitions with jobs paying Level 3 wages. After those are collected and approved, if there are any visas remaining under the H-1B cap, then a filing period for Level 2 wages would be next, and finally a filing period for Level 1. With a process like this, the cap-subject H-1B petitions in a given fiscal year would not all be submitted at once, thereby allowing USCIS to adjudicate and allocate petitions “in the order in which” they were filed, as the statute requires. If there end up being more petitions than available H-1B slots during a filing period for a particular wage level, USCIS could conduct a “mini-lottery” in order to randomly allocate the petitions within that wage level.

Fixing the H-1B program requires improving the H-1B prevailing wage methodology

As we have discussed in this comment, a reasonable and fair H-1B prevailing wage methodology that truly reflects market rates for H-1B occupations is essential to reforming the H-1B program and must exist in tandem with any allocation process that can adequately safeguard wages and working conditions. At present, the H-1B prevailing wage methodology is neither reasonable nor fair.

Section 4 of President Trump’s recent proclamation directs the Secretary of Labor to initiate a rulemaking process to revise the H-1B prevailing wage levels.46 We hope to see DOL’s proposal soon. The current methodology sets H-1B wages based on DOL survey data by occupation and local area, setting them at specified percentile levels in the distribution of surveyed wages in the OEWS, which have ben chosen by DOL. The current wage levels are set at arbitrarily low levels (i.e. percentiles), leading to the vast majority of H-1B workers being paid at wage rates that are below the local median wage for the occupations they fill (as discussed at length in this comment). DOL in 2020 finalized a rule to amend the H-1B prevailing wage levels, but it was blocked in federal court on procedural grounds, and the Biden administration DOL considered proposing its own updated H-1B methodology soon thereafter, even soliciting comments from the public on it, but the Biden DOL ultimately never introduced its own proposed rule. 

DOL has the requisite legal authority to attempt again to modify the H-1B prevailing wage levels to appropriate rates that protect U.S. wage standards and prevent adverse effects caused by the H-1B program. For far too long, the H-1B wage levels have been set at an artificially low level that undercuts U.S. wage standards—and we have called on both Republican and Democratic administrations to fix the problem using their executive authority. It is reasonable for DOL to do so now, and we call on DOL to update the prevailing wage levels so that Level 1 is no lower than the local median wage for the occupation, i.e. the current Level 3 wage.

Fixing the H-1B program requires increased and improved labor standards enforcement and adequate funding and staffing at worker protection agencies like DOL

As we have already noted, adequate reform of the H-1B program that improves wages and working conditions for all workers requires robust labor standards enforcement, in particular adequate oversight from the Wage and Hour Division (WHD) at DOL. Unfortunately, the current outlook for labor standards enforcement is bleak.

Federal budgets for the past decade at least have heavily prioritized immigration enforcement over labor standards enforcement, with nearly 14 times as much being appropriated for immigration enforcement ($30.2 billion) as compared to the amount appropriated for labor standards and worker protection agencies ($2.2 billion) in 2023.47 The 2025 budget bill passed by Republican legislators through reconciliation has dwarfed this disparity, giving $170 billion to the administration to carry out its immigration enforcement activities, while failing to appropriate even one additional cent to worker protection agencies. This, at a time when worker protection agencies are already underfunded and understaffed.

Figure A shows that, in inflation-adjusted 2023 dollars, WHD—the primary agency responsible for enforcing the wage promises made by employers in H-1B LCA filings—had a budget in 2006 of $250 million, and in 2023, $260 million—an increase of just $10 million over nearly two decades. As Figure A also shows, this trend has been consistent with appropriations for two other key worker protection agencies, the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB). At both OSHA and the NLRB, inflation-adjusted appropriations were significantly lower in 2023 compared with 2006.

Figure A

In addition to funding levels that have barely kept up with inflation at WHD—the primary agency tasked with protecting labor standards in the H-1B program—the number of WHD investigators that the agency employs is at an all-time low. Those investigators are also primarily responsible for ensuring that federal wage and hour laws are obeyed by employers across all 50 states and U.S. territories, and protecting the roughly 170 million workers in the U.S. labor market. Figure B shows that there were only 733 WHD investigators at the end of 2023 to enforce all federal wage and hour laws, 79 fewer than in 1973, the first year for which data are available, and 499 fewer than the peak year of 1978 when there were 1,232 WHD investigators. By May 2025, just four months into the Trump administration, the number of WHD investigators had dropped to 611, a new historic low. While the number of WHD investigators is now half of what it was at its peak in 1978, the number of workers those investigators have a mandate to protect has tripled, and the number of establishments subject to WHD enforcement has quadrupled.48

Figure B

Having already cut at least half a billion dollars from DOL funding, requiring the agency to close regional offices that enforce wage and hour laws,49 the administration is seeking even further decreases in labor standards enforcement funding and staffing, with a reported goal of cutting 30% of funding from DOL.50 The administration has fired or forced out leaders and career staff at worker protection agencies and cut budgets almost indiscriminately, severely hampering the ability of federal agencies to protect wages and working conditions. And there is now a likely pause in labor and employment law enforcement because of the government shutdown.

If the administration is serious about creating new and improved rules for the H-1B program and enforcing them through new initiatives like Project Firewall, then they must allow DOL to play a lead role and have deconfliction measures in place with DHS to prioritize protecting worker interests over immigration enforcement goals. The administration must also call on Congress to drastically increase budgets for key worker protection agencies, reinstate staff at DOL that has been fired or laid off, and ramp up hiring of new staff. In addition, DHS should offer temporary immigration status protections coupled with work authorization to protect migrant workers who report their employers’ violations of labor and employment laws from retaliation, which will also encourage them to come forward and assist labor agencies in holding H-1B employers accountable when they break the law.

Conclusion

For years, migrant worker advocates, unions, academics, and both Democratic and Republican lawmakers have pointed out the need to change employer incentives by shifting away from the H-1B random lottery towards a true prioritization process in which visas are issued to employers seeking to hire and retain skilled workers by paying them fair wages that reflect market rates. We have urged the Administration and the Congress to explore alternatives to the lottery system that would directly prioritize wages and skills, and thus we support this regulatory effort to implement this change via a weighted lottery.

The H-1B visa program is the largest temporary work visa program in the United States and an important pathway into the U.S. labor market for skilled migrants from around the world—but it is a pathway that has serious deficiencies when it comes to the labor and employment rights of migrant workers and preserving U.S. labor standards. By issuing this proposed rule, DHS has taken an important first step towards fixing a system that has rewarded low-road employers with a business model that hinges on underpaying migrant workers. But as these comments suggest, even more should be done to improve the regulations that should act as safeguards to protect H-1B workers and similarly situated U.S. workers. H-1B workers should be paid fairly, have equal rights, and have an opportunity to become lawful permanent residents within a reasonable period of time. The administration should also take further action on other visas and in other areas to lift wage standards and improve working conditions for all workers, regardless of immigration status.

Regards,

Daniel Costa, Esq.
Director of Immigration Law and Policy Research
Economic Policy Institute

Ron Hira, Ph.D., P.E.
Associate Professor
Department of Political Science
Howard University

1. Daniel Costa and Ron Hira, H-1B visas and prevailing wage levels: A majority of H-1B employers—including major U.S. tech firms—use the program to pay migrant workers well below market wages, Economic Policy Institute, May 4, 2020.

2. See, Department of Labor, Employment and Training Administration, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, Interim Final Rule DOL Docket No. ETA-2020-0006, RIN: 1205-AC00, October 8, 2020; see also Daniel Costa, “EPI comments on DOL wage level methodology for H-1B visas and permanent labor certifications for green cards,” Economic Policy Institute (public comments), November 9, 2020.

3. U.S. Citizenship and Immigration Services, Department of Homeland Security, Strengthening the H-1B Nonimmigrant Visa Classification Program, CIS Docket No. 2658-20, DHS Docket No. USCIS-2020-0018, RIN: 1615-AC13, October 8, 2020.

4. U.S. Citizenship and Immigration Services, Department of Homeland Security, Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions, CIS No. 2674-20; DHS Docket No. USCIS-2020-0019, RIN 1615-AC61, 85 Fed.Reg. 69236 (November 2, 2025)/

5. Michelle Hackman, “Federal Judge Strikes Down Trump’s H-1B Visa Rules on Highly Skilled Foreign Workers,” Wall Street Journal, December 1, 2020.

6. Presidential Candidate Joe Biden, immigration plan; previously available at https://joebiden.com/immigration/ (archived and on file with authors).

7. See, Sec. 104. H-1B Visa Allocation in S. 2928, H-1B and L-1 Visa Reform Act, 119th Congress (2025-2026) and H.R. 6993, H-1B and L-1 Visa Reform Act, 116th Congress (2019-2020).

8. Dave Jamieson, “Trump is hoping to deliver a parting gift to the agriculture lobby: an effective wage cut for farmworkers,” Huffington Post, November 9, 2020.

9. Employment and Training Administration, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, Interim Final Rule, U.S. Department of Labor, 90 Fed. Reg. 19365 (October 2, 2025). See discussion in Lauren Kaori Gurley, “Trump administration says immigration enforcement threatens higher food prices,” Washington Post, October 11, 2025; David Dayen, “Trump Labor Department Says His Immigration Raids Are Causing a Food Crisis,” The American Prospect, October 8, 2025.

10. Eric Fan, Zachary Mider, Denise Lu, and Marie Patino, “How Thousands of Middlemen are Gaming the H-1B Program,” The Big Take, Bloomberg, July 31, 2024.

11. U.S. Bureau of Labor Statistics, “15-0000 Computer and Mathematical Occupations (Major Group),”Occupational Employment and Wage Statistics, May 2024, U.S. Department of Labor.

12. Authors’ analysis of the LCA Programs disclosure data files for fiscal year 2024, Office of Foreign Labor Certification, Performance Data, Employment and Training Administration, U.S. Department of Labor.

13. See, for example, “Techsploitation,” Reveal News, The Center for Investigative Reporting, and Farah Stockman, “Teacher Trafficking: The Strange Saga of Filipino Workers, American Schools, and H-1B Visas,” Boston Globe, June 12, 2013.

14. Christopher Lapinig, “How U.S. Immigration Law Enables Modern Slavery,” The Atlantic, June 7, 2017.

15. See for example, Erika Werner, “High-skilled visa holders at risk of deportation amid tech layoffs,” Washington Post, February 24, 2023.

16. For a discussion about H-1B portability in practice, see Daniel Costa, “Is portability a panacea?

Changing employers in US temporary migration programmes,” chapter 8 in Christiane Kuptsch and Fabiola Mieres (eds.), Temporary labour migration: Towards social justice? edited volume, International Labour Organization, February 2025.

17. See for example, Daniel Costa and Ron Hira, H-1B visas and prevailing wage levels: A majority of H-1B employers—including major U.S. tech firms—use the program to pay migrant workers well below market wages, Economic Policy Institute, May 4, 2020; Daniel Costa and Ron Hira, “Tech and outsourcing companies continue to exploit the H-1B visa program at a time of mass layoffs: The top 30 H-1B employers hired 34,000 new H-1B workers in 2022 and laid off at least 85,000 workers in 2022 and early 2023,” Working Economics blog (Economic Policy Institute), April 11, 2023.

18. See for example, Senator Richard Durbin, “How American Jobs are Outsourced,” YouTube.com video, April 16, 2016.

19. See for example, Stef Kight, “U.S. companies are forcing workers to train their own foreign replacements,” Axios, December 29, 2019; Julia Preston, “Pink Slips at Disney. But First, Training Foreign Replacements,” New York Times, June 3, 2015; Julia Preston, “Toys ‘R’ Us Brings Temporary Foreign Workers to U.S. to Move Jobs Overseas,” New York Times, September 29, 2015; Michael Hiltzik, “How the University of California Exploited a Visa Loophole to Move Tech Jobs to India,” Los Angeles Times, January 6, 2017; Patrick Thibodeau, “Southern California Edison IT Workers ‘Beyond Furious’ over H-1B Replacements,” Computerworld, February 5, 2015.

20. See for example, Eric Fan, Zachary Mider, Denise Lu, and Marie Patino, “How Thousands of Middlemen are Gaming the H-1B Program,” The Big Take, Bloomberg, July 31, 2024; Julia Preston, “Large Companies Game H-1B Visa Program, Costing the U.S. Jobs,” New York Times, November 10, 2015.

21. David Weil, The Fissured Workplace: How Work Became So Bad for So Many and What Can Be Done to Improve It, Harvard, 2014.

22. A number of studies show a wage penalty for subcontracted/outsourced workers. For example, see Arindrajit Dube and Ethan Kaplan, “Does Outsourcing Reduce Wages in the Low-Wage Service Occupations? Evidence from Janitors and Guards,” Cornell University ILR Review. January 1, 2010); Deborah Goldschmidt and Johannes Schmieder, “The Rise of Domestic Outsourcing and the Evolution of the German Wage Structure,” The Quarterly Journal of Economics, Oxford University Press, vol. 132(3), 2017, pages 1165-1217; Andres Drenik, Simon Jäger, Pascuel Plotkin, and Benjamin Schoefer “Paying Outsourced Labor: Direct Evidence from Linked Temp Agency-Worker-Client Data,” Econometrics Laboratory, University of California, Berkeley, September 2020.

23. Wage and Hour Division, “H-1B Program,” U.S. Department of Labor, n.d. (last visited October 23, 2025).

24. The source for this table is USCIS Form I-129 petition data obtained by Eric Fan, a reporter with Bloomberg; see BloombergGraphics / 2024-h1b-immigration-data at GitHub, and the source for LCA data is LCA Programs disclosure data files for fiscal year 2024, Office of Foreign Labor Certification, Performance Data, Employment and Training Administration, U.S. Department of Labor.

25. See DOL prevailing wage guidance at Employment and Training Administration, “Prevailing Wage Determination Policy Guidance: Nonagricultural Immigration Programs,” Revised November 2009, U.S. Department of Labor.

26. Source for LCA data is LCA Programs disclosure data files for fiscal year 2023, Office of Foreign Labor Certification, Performance Data, Employment and Training Administration, U.S. Department of Labor.

27. Kevin Gray, “Average Starting Salary for Class of 2024 Shows Mild Gain,” National Association of Colleges and Employers, August 26, 2025.

28. Jake Barnes, Janice Fine, Daniel J. Galvin, Jenn Round, Hana Shepherd, To Help U.S. Workers, We Need Labor Standards Enforcement, Not Mass Deportations, Data Brief, Workplace Justice Lab, Rutgers University, May 2025.

29. Occupational Employment and Wage Statistics, 15-1211 Computer Systems Analysts and 15-1252 Software Developers, Industry: Cross-industry, Private, Federal, State, and Local Government, May 2024, U.S. Bureau of Labor Statistics, U.S. Department of Labor.

30. U.S. Department of Homeland Security, Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions, Notice of Proposed Rulemaking, 90 Fed. Reg. 45992-3 (September 24, 2025); see in particular this passage: “If the H-1B beneficiary would work in multiple locations, or in multiple positions if the registrant is an agent, the registrant would select the box for the lowest equivalent wage level among the corresponding wage levels for each of those locations or each of those positions and would list the location corresponding to that lowest equivalent wage level as the area of intended employment.”

31. S.358 – Immigration Act of 1990, U.S. Public Law 101-649.

32. U.S. Department of Homeland Security, Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions, Notice of Proposed Rulemaking, 85 Fed. Reg. 69236 (November 2, 2020); Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions, Final Rule, 86 Fed. Reg. 1676 (January 8, 2021).

33. Daniel Costa and Ron Hira, H-1B visas and prevailing wage levels: A majority of H-1B employers—including major U.S. tech firms—use the program to pay migrant workers well below market wages, Economic Policy Institute, May 4, 2020.

34. See Analysis of Bureau of Labor Statistics data by Hal Salzman and Khudodod Khudododov, “It Ain’t Pretty: Wage growth has been low or stagnant for many occupations. Coding skills offer little reprieve,” Figure published in Rachel Rosenthal, “Tech Companies Want You to Believe America Has a Skills Gap,” Bloomberg Opinion, August 4, 2020; Hal Salzman, Daniel Kuehn, and B. Lindsay Lowell, Guestworkers in the high-skill U.S. labor market: An analysis of supply, employment, and wage trends, Economic Policy Institute, April 24, 2013; Ron Hira, “Is There Really a STEM Workforce Shortage,” Issues in Science and Technology, Col XXXVIII, No. 4, Summer 2022.

35. 85 Fed. Reg. 69238, citing H.R. Rep. 101–723(I) (1990), as reprinted in 1990 U.S.C.C.A.N. 6710, 6721 (stating ‘‘The U.S. labor market is now faced with two problems that immigration policy can help to correct. The first is the need of American business for highly skilled, specially trained personnel to fill increasingly sophisticated jobs for which domestic personnel cannot be found and the need for other workers to meet specific labor shortages’’).

36. U.S. Department of Homeland Security, Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions, Notice of Proposed Rulemaking, 90 Fed. Reg. 46006 (September 24, 2025).

37. Jeremy Neufeld, The “Wage Level” Mirage: How DHS’s H-1B proposal could help outsourcers and hurt US-trained talent, Institute for Policy, September 24, 2025.

38. Jeremy Neufeld, Talent Recruitment Roulette: Replacing the H-1B Lottery: We could almost double the economic value of the H-1B program without changing the number of visas, Institute for Policy, January 17, 2025.

39. National Research Council, Building a Workforce for the Information Economy, The National Academies Press (Washington, DC).

40. For an examination of occupational shortages, see Ron Hira, “Is There Really a STEM Workforce Shortage,” Issues in Science and Technology, Col XXXVIII, No. 4, Summer 2022. For technology layoffs, see Layoffs.fyi, a website that tracks layoffs. For the state of the computer job market for recent graduates see, Natasha Singer, “Goodbye, $165,000 Tech Jobs. Student Coders Seek Work at Chipotle.” NY Times, August 10, 2025. For trends in computer science bachelor’s degrees, see National Center for Education Statistics, Table 322.10, Bachelor’s degrees conferred by postsecondary institutions, by field of study: Selected academic years, 1970-71 through 2021-2, 2023 Digest of Education Statistics, U.S. Department of Education. The vast majority, of computer science bachelor’s degrees, more than 90%, are earned by U.S. citizens and lawful permanent residents.

41. S.1233 – Keep STEM Talent Act of 2025, 119th Congress (2025-2026).

42. Natasha Singer, “Goodbye, $165,000 Tech Jobs. Student Coders Seek Work at Chipotle.” NY Times, August 10, 2025.

43. See for example; Eric Fan, Zachary Mider, Denise Lu, and Marie Patino, “How Thousands of Middlemen are Gaming the H-1B Program,” The Big Take, Bloomberg, July 31, 2024; Daniel Costa and Ron Hira, H-1B visas and prevailing wage levels: A majority of H-1B employers—including major U.S. tech firms—use the program to pay migrant workers well below market wages, Economic Policy Institute, May 4, 2020; Ron Hira, Congressional Testimony before the U.S. Senate Subcommittee on Immigration and the National Interest, hearing on “The Impact of High-Skilled Immigration on U.S. Workers,” Economic Policy Institute, February 25, 2016.

44. Eric Fan, Zachary Mider, Denise Lu, and Marie Patino, “How Thousands of Middlemen are Gaming the H-1B Program,” The Big Take, Bloomberg, July 31, 2024; Julia Preston, “Large Companies Game H-1B Visa Program, Costing the U.S. Jobs,” New York Times, November 10, 2015.

45. For more details about visa-ready H-1B abuse by outsourcing firms, see Ronil Hira’s testimony before the U.S. Senate Committee on the Budget, “Unlocking America’s Potential: How Immigration Fuels Economic Growth and Our Competitive Advantage,” September 13, 2023.

46. The White House, Restriction on Entry of Certain Nonimmigrant Workers, Presidential Proclamation, September 19, 2025.

47. Daniel Costa, Josh Bivens, Ben Zipperer, and Monique Morrissey, The U.S. benefits from immigration but policy reforms needed to maximize gains: Recommendations and a review of key issues to ensure fair wages and labor standards for all workers, Economic Policy Institute, October 4, 2024.

48. Jake Barnes, Janice Fine, Daniel J. Galvin, Jenn Round, Hana Shepherd, To Help U.S. Workers, We Need Labor Standards Enforcement, Not Mass Deportations, Data Brief, Workplace Justice Lab, Rutgers University, May 2025.

49. Rebecca Rainey, “DOGE’s $455 Million in Labor Savings Carry Costs for US Workers,” Bloomberg Law, April 2, 2025.

50. Adam Cancryn and Jennifer Scholtes, “Trump sends a scorched-earth budget plan. GOP lawmakers hate it already.” Politico, May 2, 2025.

H-2B is one of many U.S. temporary work visa programs.1 The Immigration and Nationality Act of 1952 created some of the existing temporary work visas, including the H-2 visas for foreign nationals “coming temporarily to the United States to perform other temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.”2 In 1986, the Immigration Reform and Control Act (IRCA) split the H-2 visa into two separate visas: the H-2A for temporary workers employed in agricultural occupations and H-2B for temporary workers in occupations outside of agriculture.3 More specifically, the purpose of the H-2B program is for circumstances when nonagricultural employers cannot find sufficient U.S. workers in seasonal or temporary jobs and can prove to the U.S. Department of Labor that their need for an H-2B worker is legitimate. In practice, the most common H-2B occupations are in landscaping, construction, forestry, seafood and meat processing, traveling carnivals, restaurants, and hospitality. Legislation enacted subsequently to IRCA, the Immigration Act of 1990, established an annual numerical limit of H-2B visas that could be issued, of 66,000 visas, to take effect in fiscal year (FY) 1992.4 This annual numerical limit of 66,000 visas is often referred to as the H-2B annual “cap.”

As presently constructed, the H-2B visa program is deeply flawed. Like other temporary work visa programs, it is rife with abuse and in desperate need of reform. It fails to ensure that migrant workers are paid fairly and treated with dignity, and it fails to prevent harm to workers who already reside in the United States. It is of great concern that the current structure does not prevent employers with track records of labor, and wage and hour violations from hiring through the H-2B program. Current rules also make it easy for employers to game the system to bypass available U.S. workers who may be seeking seasonal jobs, and to then underpay migrant workers recruited through the H-2B program. Employers control the immigration status of their H-2B employees, leaving workers with little bargaining power or even the ability to leave a lawbreaking employer without losing their ability to earn back the significant investments migrant workers make to participate in the H-2B program. In addition, the families of H-2B workers, in practice, are not able to join workers in the United States, and H-2B workers have no path to permanent residence and U.S. citizenship, which prevents them from fully participating and integrating into American society, and reduces their potential contributions to the U.S. economy. Together, these flaws call into question the credibility of the program.

This is relevant today because employer demand for more H-2B visas continues to escalate, and successive presidential administrations have repeatedly used authority ceded by Congress to increase the size of the H-2B program since FY 2016. In light of the second Trump administration’s policies and actions to carry out “mass deportations,” employers are lobbying furiously for more H-2B visas to fill jobs left vacant by workers who have been deported or have left voluntarily, or who lost their work authorization as a result of the Trump administration’s canceling of temporary immigration protections like parole and Temporary Protected Status.5 The recent funding allocated for immigration enforcement via H.R.1 (the  Republican-led budget bill  that was passed by Republican lawmakers and signed into law by President Trump in July 20256) will turbocharge both deportations and employer pressure for more workers employed with temporary visas like H-2B. Meanwhile, neither the Biden administration nor the first or second Trump administrations has taken any actions to implement much-needed reforms that would protect migrant workers and U.S. workers as the H-2B program expands.

This report also assesses one industry, meatpacking, as a case study of an industry in which employers are currently not heavy users of the H-2B program but have been lobbying furiously to do so and may find a sympathetic Congress and administration, given Republican control of all three branches of government. Meat and poultry processing jobs are not all temporary jobs; in fact, most are year-round, permanent jobs, and current law requires that H-2B jobs be temporary, meaning 9 months or less (with some exceptions). This report considers the impact of expanding the H-2B program to year-round jobs in the meatpacking industry compared with providing green cards to currently unauthorized workers and hiring new permanent immigrant workers with green cards, who would have a path to a citizenship.

Arguably the United States needs pathways that allow more migrants to come to the United States—especially given demographic realities7 and the fact that nearly all prime-age workforce growth in the past 30 years has come from immigration.8 But the H-2B program is not a model for a fair and safe pathway because of flaws that leave workers vulnerable to wage theft, forced labor, and other forms of employer and labor recruiter lawbreaking, including human trafficking.9 In addition, as this report discusses, the available data on labor standards enforcement show that many employers have engaged in mass lawbreaking by stealing billions in wages from workers in major H-2B industries over the past 25 years.

In light of the abuses taking place in those industries, Congress and the executive branch expanding a flawed work visa program that channels vulnerable workers into those same problematic industries—rather than using the legal authority they have to improve the program so that both migrant and U.S. workers are adequately protected—is misguided. Rather than expand H-2B, the Trump administration should work with Congress to implement reforms that would protect all workers in H-2B industries and provide green cards for workers instead of temporary visas.

Background on the H-2B visa program size and appropriations riders

A previous report published in 2022 provides a fuller explanation of the background of the size of the H-2B program and a history of the legislative riders in appropriations bills that have been used to expand the size of the H-2B program.10 Nevertheless, a brief recap here is warranted. First, in fiscal year 2016, Congress authorized a “returning worker” exemption, through appropriations legislation to fund the operation of the U.S. government. The legislation included language (known as a “rider”) exempting H-2B workers from the cap in fiscal year 2016 if they were previously in H-2B status in any of the preceding three fiscal years. There was no cap on the number of returning H-2B workers under the exemption.11

In each year since FY 2017, Congress has, through appropriations riders, given the executive branch the discretionary legal authority to roughly double the number of H-2B visas available. The Democrats and Republicans in the congressional appropriations committees who included and supported the language to expand H-2B failed to specify the level of increase they wanted for the H-2B program—passing the buck instead to the executive branch by directing DHS, in consultation with DOL, to determine how many additional H-2B visas are appropriate, if any. DHS has interpreted the statute as allowing them to issue up to 64,716 supplemental visas in the corresponding fiscal year.12 In total, it has been 10 years (FY 2016–2025) since Congress first permitted increases to the size of the H-2B program through an appropriations rider, and appropriations legislators have proposed rider language that would allow for additional visas beyond 64,716 for fiscal year 2026.13

These additional visas above the cap set by Congress are generally referred to as “supplemental” visas. The Biden administration added 55,000 supplemental visas in 2022, setting the total H-2B cap for that year at 121,000. In the following three fiscal years (2023, 2024, and 2025), DHS under the Biden administration used the full authority granted to it in the legislative riders allowing the agency to issue 64,716 supplemental visas, raising the total H-2B annual limit to 130,716. While the first Trump administration used the authority granted to it by Congress to increase the size of the H-2B program with supplemental visas, representatives from the second administration have yet to state publicly any opinions on the size of the program and whether they would take action to expand it if granted the authority by Congress.

The true size of the H-2B program has reached 170,000

In 2021, USCIS began providing data, through the H-2B Employer Data Hub, on individual H-2B petitions that USCIS has adjudicated. H-2B petitions data are categorized under either new or continuing employment, including how many petitions for H-2B workers were approved or denied, and whether each approval was counted under the original annual cap of 66,000 or the supplemental cap for the corresponding fiscal year, or whether the H-2B job was exempt from the caps. In 2024, USCIS updated these data to provide additional clarity on the types of petitions filed on H-2B within those categories. The data now specify which petitions were for continuation of an H-2B petition with the same employer (in other words, H-2B workers who had their visas extended), how many petitions were for H-2B workers who changed employers, and how many were for H-2B workers who amended their conditions of employment. (H-2B visas that are approved for extensions, changing employers, and amending conditions of employment are not counted against the annual cap.) The newly released data date back to fiscal year 2015 and allow us to have a more complete picture of the true size of the H-2B program, even compared with the estimates published in 2022.14

Figure A shows that in 2015, while the statutory cap of 66,000 was still in place, the total number of H-2B workers was higher at 75,122, of which 69,684 were H-2B workers with newly issued visas from the State Department, and 1,572 were H-2B workers who had their employment extended with the same employer. An additional 3,866 were H-2B workers who changed employers.15

By 2024, when 64,716 supplemental H-2B visas were added to the statutory cap of 66,000, for a total cap of 130,716, there were a total of 169,177 H-2B workers, a total that is more than 2.5 times the size of the original H-2B annual cap. Of those nearly 170,000 H-2B workers, 139,541 were H-2B workers with newly issued visas from the State Department, and 4,580 were H-2B workers who had their employment extended with the same employer. An additional 25,056 were H-2B workers who changed employers.

Figure A

H-2B workers are in a small number of industries and occupations for an average of 7.6 months

As discussed above, the data clearly show that the H-2B program is growing to unprecedented levels. However, H-2B workers are not spread across a wide range of industries and occupations but are highly concentrated in just a few.

Table 1 lists the top H-2B occupations by number of approvals in the USCIS H-2B Employer Data Hub, including approvals for initial employment (representing new H-2B jobs), continuing employment with the same employer (workers who have their H-2B job and status extended), and H-2B workers with approved petitions for changing employers.16 The data provided by USCIS for H-2B occupations are for broad occupational categories, which are reflected in Table 1. (Data on certified H-2B positions that are provided by DOL, on the other hand, categorize H-2B occupations under narrower titles distinguished by specific Standard Occupational Classification (SOC) codes, which fall under the broad categories provided by USCIS. DOL occupational data are discussed and analyzed later in this report.)

By far the top broad occupational category according to USCIS petition data is building and grounds cleaning and maintenance operations, accounting for 45.9% of all H-2B petitions counted, which corresponds to landscaping, maids and housekeepers, and janitors. The second largest occupation is food preparation and serving-related occupations, accounting for 14.1%, which correspond to jobs like restaurant cooks, food servers, and persons employed in fast food restaurants. The third largest is construction and extraction occupations, accounting for 7.7%, which correspond to construction laborers and other construction jobs like cement masons and concrete finishers.

As Table 1 shows, the top-10 occupations by number of approvals in the USCIS H-2B Employer Data Hub accounted for 98.8% of all H-2B approvals in 2024. If we exclude occupation number 7, “N/A”—which represents data observations in which the occupation field was missing—the remaining nine occupations still account for 94.5% of all H-2B approvals in 2024.

Table 1

The average duration of H-2B jobs can be found by analyzing data from DOL’s Office of Foreign Labor Certification. The 243,798 certified jobs in fiscal year 2024 were approved for jobs with a duration of 232 days, or 7.6 months,17 with 86% of the jobs having been certified for 6 months or more, 75% certified for 7 months or more, 53% certified for 8 months or more, and 28% certified for 9 months or more.

A high-road employment strategy prioritizing green cards: Meatpacking as a case study 

Despite the rapid increase in the size of the H-2B program, H-2B workers are concentrated in a small number of industries and occupations. By law, an employer’s need for an H-2B worker must be temporary or seasonal, but employers have been lobbying to expand H-2B into year-round, permanent jobs. Especially given the Trump administration’s determination to undertake a campaign of mass deportation and the massive influx of funding it has received through the Republican-led budget bill that was signed into law in July 2025, employers in many low-wage industries are looking for alternative employment strategies. One notable industry in which this push from employers for year-round H-2B workers is occurring is meatpacking—which we define as meat and poultry processing.  

In this section, we consider some of the impacts on the industry, workers, and local economies if meatpacking employers were able to significantly increase their hiring of H-2B workers compared with a scenario in which workers have a permanent immigration status instead. In other words, if current unauthorized immigrant workers were provided with a path to a green card and citizenship, and/or if newly recruited immigrant workers were hired with a green card in hand.

Meatpacking is an industry with a clear history of employers weaponizing immigration trends and policies to hamstring the power of workers to demand higher job quality.18 In the early 20th century, meatpacking was arduous and unsafe work done overwhelmingly by foreign-born workers for extremely low pay. However, from the 1940s until the early 1980s, unionization rates in the sector were higher than in the manufacturing average, and this labor market power showed up as wages in the meatpacking sector actually exceeding the average of even the rest of the relatively high-wage manufacturing sector.

In the 1980s, however, unionization rates in the “animal slaughtering and processing” sector declined sharply, falling from 37.4% in 1983 to 20.5% in 1989.19 (This sector includes both meatpacking and poultry processing.) Historical research indicates that unionization trends (both the post-World War II increase and the subsequent fall) in this sector were largely driven by meatpacking.20 Unionization rates in this larger sector stayed roughly steady through the 1990s and 2000s, standing at 21.7% in 2007, right before the Great Recession. Since 2007 there has been a shallow (if uneven) decline, with unionization rates averaging under 19% since 2007. The year 2024 saw a very sharp one-year drop in the rate to 13.5%; it is unclear if this is a statistical blip or instead represents sustained downward pressure on unionization rates. Unionization rates in the animal processing sector remain about twice as high as the private-sector average (13.5% versus 6.7%) but far below rates prevailing in the early 1980s. 21

This decline in unionization rates corresponds with a rise in the share of the workforce that is foreign-born (shown in Figure B). This swapping out of unionized workers for many nonunionized immigrant workers was an intentional strategy of meatpacking employers who undertook aggressive recruitment campaigns in immigrant communities to find nonunion labor, including from beyond the borders of the United States. (Nevertheless, unions can and do unionize some foreign-born workers, despite the added difficulties caused by their immigration status, which makes them more vulnerable to exploitation and retaliation. However, data on their immigration statuses are not readily available (i.e., whether they are naturalized citizens, green card holders, or lack status)).

Figure B

The precarity of much of the immigrant workforce in the meatpacking sector keeps wages suppressed—and not just for the foreign-born. In light of newly aggressive immigration enforcement, meatpacking employers may well be thinking about alternative ways to keep their workforce disempowered, especially if the option of large-scale employment of unauthorized workers becomes less viable. An obvious alternative model of immigration-based labor precarity would be to increase hiring through the H-2B visa program, since the program fails to fully protect the rights of migrant workers. At present, relatively few meatpacking employers hire through H-2B because the law only permits temporary jobs to be filled by H-2B workers, whereas meatpacking work is not temporary or seasonal.22 Expanded hiring of H-2B workers in meatpacking would require a statutory change, and reports from industry publications suggest that employers are, in fact, lobbying for that, as well as a change to allow hiring through the H-2A visa program, an uncapped visa program that is currently only permitted for seasonal farm jobs.23

Why a precarious workforce for meatpacking is bad for local economies

A replacement of the existing precarious immigrant workforce with another precarious and temporary migrant workforce would do nothing to spur needed job-quality improvements in meatpacking. If the widespread adoption of H-2B visas went beyond this and began displacing unionized positions, already insufficient job quality would degrade significantly.

The possibility of visa-enabled suppression of workers’ wages and bargaining power would obviously be bad for meatpacking workers themselves, but this would also be bad for the local economies that meatpacking plants often anchor. The meatpacking industry in recent decades has seen pronounced concentration, with more and more meatpacking done by a smaller number of very large firms, but also done in more geographically concentrated plants, usually located far from metropolitan centers.24 The concentration of meatpacking in less urban parts of the United States means that meatpacking workers’ leverage is weaker  due to a lack of easily obtainable alternative job options, should they lose their meatpacking jobs.25

This geographic concentration also means that the local meatpacking plant is often a key engine of local economies. Anything that degrades workers’ wages at these plants translates directly into less money flowing into the local economies. The corresponding increase in profits and business income that accompanies successful wage suppression efforts is far less likely to redound to the benefit of these local economies. The owners of today’s meatpacking plants tend to be large corporate conglomerates that distribute profits to the shareholders and managers who overwhelmingly live outside the counties and towns that plants are located in.

Going forward, the choice facing the meatpacking industry seems to be a high-road or low-road workforce strategy, both of which will require changes to current U.S. law. The high-road strategy—converting today’s precarious immigrant pool into a unionized workforce (composed of both foreign-born workers with a permanent immigration status and U.S.-born workers)—will raise wages for meatpacking workers and raise spending and demand for labor in the local economies anchored by these plants. The low-road strategy—converting today’s precarious immigrant labor pool into tomorrow’s precarious temporary migrant labor pool—will do the opposite. Namely, the low-road strategy entails replacing current unauthorized immigrant workers and workers with time-limited protections like Temporary Protected Status and parole, with H-2B workers on temporary visas that fail to provide fundamental labor and workplace protections. That scenario will keep meatpacking wages extremely low and sap demand in local economies.

Wage gains from providing workers with a permanent immigration status would raise demand for goods and services in local economies

The potential stakes in this decision are not trivial. According to the Current Employment Statistics (CES) of the Bureau of Labor Statistics (BLS), the animal slaughtering and processing industry (including poultry processing) employs roughly 560,000 people in the United States. According to data from the Census of Manufacturing, these workers earn a combined payroll of nearly $30 billion.26 There were animal processing facilities in 37 states in 2022, and in 23 of them, its value of shipments (revenue) exceeded 1% of total gross state product (GSP).27 In recent decades, a growing share of meatpacking plants has been concentrating in rural and nonmetropolitan areas, making this one of the few key hubs of economic activity that is growing, rather than shrinking, in these regions.28

In Table 2, we show the 23 states in which revenues of meatpacking constitute an economically significant part of the state’s overall activity—a threshold we define as 1% of GSP. Table 2 shows the total GSP in the 23 states, and then the value of shipments (revenue), payroll, value-added, and value of shipments as a percentage of GSP for animal slaughtering and processing, including poultry processing.

Table 2

Table 3 shows total employment in animal processing (which includes both meat and poultry processing), and the shares of workers who are U.S.-born and foreign-born, and the subsets of the foreign-born who are naturalized citizens and noncitizens. Currently, foreign-born workers in the sector constitute over 40% of the workforce, and roughly three-fourths of these workers are not U.S. citizens.29 Noncitizen workers are likely a mix of unauthorized immigrant workers, green card holders including refugees and asylees, migrant workers with temporary visas, asylum seekers, and workers with temporary immigration protections like parole and Temporary Protected Status that provide legal work authorization.30

Table 3 also shows that the implied labor market precarity of this workforce appears in average wages: Wages for U.S.-born workers are more than 25% higher than for foreign-born workers. Further, wages for both U.S.-born workers and foreign-born workers in the sector are significantly higher than wages reported for the 311 total jobs certified by the U.S. Department of Labor for new H-2B workers in the “butchers and meat cutters” and “slaughterers and meat packers” occupations in 2024.

The last two columns in the bottom half of the table show how wages in the meatpacking sector stack up against wages in the overall economy. The second column shows the ratio of average wages in the meatpacking sector to median wages in the overall economy for each group. The last column shows average wages per group in the overall economy, showing that average wages for all workers are significantly higher than for both U.S.-born and foreign-born meatpacking workers. One takeaway from this table is that for U.S.-born workers, the meatpacking sector is notably low wage, with average hourly wages constituting just 83.2% of typical (median) wages for U.S.-born workers across the overall economy. However, for foreign-born workers, average hourly wages in meatpacking exceed the median for foreign-born workers across the wider economy.

Table 3

This wage advantage we see here for U.S.-born workers is right in line with many research-based estimates of the wage premium for having a permanent immigration status (a green card or citizenship) relative to either temporary work visas or the lack of an immigration status and work authorization. For example, Gass Kandilov found a 24.7% increase in wages for migrant workers on temporary visas, following the receipt of a green card,31 while Mukhopadhyay and Oxborrow also found a 25.4% increase in wages from transitioning from a temporary visa to a green card.32

Similarly, Edwards and Ortega find that legalization erases 20% of the gap in observed productivity of unauthorized and U.S.-born workers, indicating that legal status alone would raise wages by (at least) 20% for workers receiving permanent status.33

Given these estimates, we can provide a very rough calculation about how much wages would rise if the current foreign-born workforce in meat and poultry processing received a change in immigration status that granted them the same labor market rights and power as U.S.-born workers. These wage gains would translate essentially dollar-for-dollar into increased demand for goods and services in the local economies in which they work.

A 20% wage gain due to being granted permanent status (the midpoint of these estimates) would raise the overall payroll in meat and poultry processing—and hence, the demand flowing through the local economies surrounding meatpacking plants—by roughly 3.75%.34 In dollar terms, this would generate $1.1 billion additional dollars for the local economies surrounding meatpacking plants.35 

Importantly, Apgar finds that unauthorized workers and those in temporary work visa programs face essentially identical wage penalties relative to immigrants with long-term permanent status.36 She finds raw wage penalties of roughly 25% and regression-based wage penalties of 10–15%, and no significant difference in these between visa holders and unauthorized workers. This means that an employer strategy that instead sought to replace today’s unauthorized foreign-born workers in meatpacking with workers on temporary visas would not generate these wage gains and, hence, would fail to provide any boost to the local economies where these workers live.

Permanent immigrants will invest more in local economies because they send fewer remittances abroad than temporary migrants do

Besides the additional boost to local economies stemming from higher wages induced by granting permanent status to currently precarious workers, there are other potential benefits that would accrue from a program of granting permanent status and full workplace rights to today’s foreign-born meatpacking workforce. For one, evidence indicates that permanent immigrants spend more of their income in their country of residence than do temporary migrants. Temporary migrants tend to direct more consumption spending in their country of origin (often by taking more frequent trips there), and they also tend to remit a higher share of their income than permanent immigrants do.

The magnitude of these effects could be considerable. William Olney, for example, found that immigrants residing in Germany remitted 11% of their income abroad.37 This looks in line with what data from the United States would suggest: In 2024 remittances from the United States were roughly $230 billion based on the aggregate labor income of foreign-born workers of roughly $2.1 trillion in 2023.38

Findings from two studies (one by Dustmann and Mestres39 and another by Pinger40) indicate that remittance rates among “temporary” migrants are 30% higher than rates for “permanent” immigrants. While it seems clear that workers on temporary visas in the United States are “temporary” and workers with permanent lawful status are “permanent,” it is not entirely clear how unauthorized immigrants currently living in the United States fit into these categories. However, if the Trump administration’s sharp increase in deportations and cancellations of status protections like TPS and parole continue, and it results in a large chunk of the current meatpacking workforce being replaced, the choice facing the meatpacking industry in terms of whether to take the low- or the high-road in constructing this future workforce maps near perfectly onto this “temporary” versus “permanent” distinction. Either the industry pushes for a system that allows employers to hire temporary workers on visas or a system in which long-term immigrants who are permanent residents can be recruited and will work in unionized jobs. The difference between the low- and high-road will have nontrivial effects on remittances—and by extension, the amount of income that meatpacking workers will spend in local economies.

If we take the foreign-born noncitizen share of the meatpacking workforce shown in Table 3 (29.9%) and assume that 5% of those workers have a permanent status via green cards, that means roughly 25% of workers in meatpacking are foreign-born and lack permanent status. Assume this workforce is converted to one with temporary work visas. In this case, those workers would likely remit 13.5% of their earnings (the average for foreign-born workers without permanent status). Conversely, a permanent regularization of status that saw their wages rise by 20% would also see their remittance rate drop to 10.5%.41 This, in turn, implies that remittances would drop by $220 million, and this money would flow to local economies. 42

While this likely overstates the number of “temporary” immigrants (because some share of the unauthorized population has resided in the United States for many years), it does give a sense of how important the temporary versus permanent distinction is for remittance behavior and how big an economic effect would be triggered by changes in the temporary or permanent classification. The obvious implication is that any move in either meatpacking or the wider economy to increase the share of the overall workforce on temporary work visas will see a rise in remittances that will come at the expense of demand for goods and services in local economies.

Family unity through green cards brings additional economic benefits

The remittances flow to the places where workers’ families live, which highlights another potential benefit from granting permanent status: Temporary migrants are far less likely to bring their families to the United States, including their spouses. This is especially true for workers on H-2A and H-2B visas. While H-2B workers are legally allowed to apply to have their spouses accompany them through H-4 visas, those spouses are not allowed to obtain work permits. Given that H-2A and H-2B workers earn very low wages, it does not make economic sense for them to apply for H-4 spousal visas, since the couple would have to survive in the United States—a higher-wage country than the countries of origin of most H-2A and H-2B workers—on just one low-wage salary. Also, as others have observed, there are additional reasons that contribute to very few spouses of H-2A and H-2B workers obtaining H-4 visas.43 If workers in the United States doing low-wage work on temporary work visas have spouses who remained in their country of origin, it seems obvious that workers on temporary work visas will remit a higher share of their income to support their families. If spouses are allowed to accompany workers to the United States, the remittances that previously went to spousal support abroad will instead spur demand for local economic output.

Additionally, spouses of working immigrants are themselves potential workers. If workers who would be employed in the United States on temporary work visas were instead granted permanent status—and hence, were able to bring working spouses to the United States—it would increase the labor supply and the rate of new business formation in local communities.

Consider two scenarios. In the first, the 25% of workers in the meatpacking industry who are foreign-born but not naturalized U.S. citizens or permanent residents, then become H-2B visa holders, and hence, are almost universally unable to have working spouses accompany them. In the second, these workers are instead granted permanent immigrant status via green cards. Assume that half of workers with permanent status bring working spouses to the United States and that two-thirds of the spouses work at a wage that is two-thirds as high as the spouses in meatpacking.44 This would generate an additional $1.3 billion in labor income for local economies surrounding meatpacking plants.

A high-road employment strategy for meatpacking with green cards would result in an additional $2.62 billion flowing to local economies surrounding meatpacking plants

In sum, the high-road employment scenario discussed here would lead to significant economic benefits for local economies surrounding meatpacking plants. First, there would be an additional $1.1 billion based on the likely wage gain due to workers having permanent status through green cards. There would be an additional $220 million resulting from the drop in remittances from workers having a green card compared with them being temporary workers. And an additional $1.3 billion in labor income would result from meatpacking workers with green cards who are able to keep their families together and have spouses who are permitted to work in the United States. Thus, the full economic impact of a high-road labor and immigration policy strategy for the meatpacking industry sums to about $2.62 billion in additional money flowing to local economies surrounding meatpacking plants. In the 23 states we identified previously that account for 80% of meatpacking activity, the average boost to state economies would be roughly $85 million per state.

Wages are still too low in H-2B occupations and undercut U.S. wage standards

Another important element of the H-2B program, and one that has been ripe for reform for many years, is the H-2B wage methodology, which sets out the minimum wages that employers must pay their H-2B workers. In most cases, since 2015, the DOL’s H-2B wage methodology has required that employers advertise most H-2B jobs to U.S. workers at the local average wage for the specific occupation and pay their H-2B employees that wage—according to data from the DOL’s Occupational Employment and Wage Statistics (OEWS) survey.45 While at first glance, this appears to be a reasonable wage rule, in practice, the available evidence makes clear that the H-2B wage rule is undercutting wage standards at the national level in H-2B occupations and is, therefore, not consistent with the law establishing the H-2B program.

To illustrate, see Table 4, which shows the top-15 H-2B occupations in fiscal year 2024 by Standard Occupational Classification code, according to the number of H-2B jobs certified by DOL. (These are narrower occupations that fall within the broader occupational codes used in Table 1 and by USCIS.) For context, as Table 4 shows, the top-15 H-2B occupations accounted for 82% of all certified H-2B jobs in 2024. The column to the right of the number of certified jobs is the nationwide average hourly wage for all certified H-2B workers in each of the occupations, according to our analysis of DOL disclosure data.46

To the right of the H-2B average hourly wage column are the 2024 average hourly wage rates for all workers in the occupation nationwide, according to DOL’s OEWS survey, which is the same data set used to set H-2B wage rates, making it an apples-to-apples comparison. The final two columns show the difference between the average hourly certified wage for all H-2B workers nationwide in the occupation and the average hourly OEWS wage for all workers in the entire country—the dollar amount and in percentage terms. In other words, these numbers reveal the amounts by which certified H-2B wages are undercutting national-level wage standards in H-2B occupations. Table 4 clearly shows that the H-2B program is allowing employers to legally undercut U.S. wage standards, which harms all workers, regardless of whether they are U.S.-born citizens or foreign-born.

While, as noted above, H-2B wages are set at the local level according to each job, we must instead look at the impact of the H-2B program on the average wages of H-2B occupations at the national level because the H-2B statute sets a national standard for the protection of U.S. labor standards. The H-2B statute clearly states that H-2B workers can be hired only “if unemployed persons capable of performing such service or labor cannot be found in this country.”47 In order to determine whether there are “unemployed persons” in the United States capable of doing a job before an employer can hire an H-2B worker, employers should be required to offer at least the local, state, or national average wage for the occupation (whichever is highest), recruit U.S. workers nationwide, and offer to pay for housing and transportation for both U.S. and H-2B workers. But under the H-2B recruitment and wage regulations, that’s never been the case.

Table 4

Table 4 shows that in all of the top-15 H-2B occupations in fiscal year 2024, the average hourly wage certified nationwide for H-2B workers was lower than the OEWS average hourly wage for all workers in the occupation. The biggest wage differential was found in the forest and conservation workers occupation: The national average hourly wage was $5.08 higher than the average wage certified for H-2B workers. The next biggest difference was for cement masons and concrete finishers, where the national average wage was $4.88 higher than the average wage certified for H-2B workers. If, for example, an employer hired an H-2B cement mason to work for 40 hours per week for the average duration of an H-2B job (approximately 33 weeks) at $4.88 per hour less than the national average wage—due to local wage variations, as the H-2B wage rule allows—the employer would save, and an H-2B worker would be underpaid by $6,442.

In the top occupations of landscaping and groundskeeping workers—which accounted for 37% of all H-2B certified jobs in 2024—the average H-2B wage was $2.11 lower per hour than the national average wage, almost 11% less. The construction laborers’ occupation, which is consistently one of the top H-2B occupations every year, had an average H-2B wage that was $3.79 less than the national average wage for the occupation, over 15% less. Employers in the seafood industry, who every year are some of the loudest voices calling for an increase in the H-2B cap, collectively paid their H-2B workers $4.13 less per hour than the national average wage in the meat, poultry, and fish cutters and trimmers occupation, over 22% less.

An easy way to fix this so that the H-2B wage rule no longer undercuts existing U.S. wage standards and so that it is consistent with the statute that establishes the program would be to require that employers pay at least the highest of the local, state, or national average wage for the occupation according to DOL’s OEWS data. DOL could even require a higher wage—for example, the 75th-percentile wage instead of the average—in order to incentivize additional recruitment of U.S. workers. DOL has the legal authority to make these changes via regulation—and given the popularity of the H-2B program among employers and employer pressure to increase the size of the program, the Trump administration should consider implementing such a rule in order to protect wage standards in H-2B occupations and ensure that migrant workers in H-2B are not exploited and underpaid relative to U.S. wage standards.

There’s an additional element of the current H-2B wage rule that allows employers to undercut wage standards in H-2B: employer-provided private wage surveys. Employers have the ability, under the current rules, to cherry-pick the data source they like in order to establish the legal minimum wage rates for their H-2B employees through non-governmental wage surveys that DOL approves. One can rightly assume that employers never go through the trouble of using one of these private wage surveys to increase the minimum wage they’ll pay their H-2B workers—they only use them to lower it. Seafood employers are fond of this loophole, and examples exist showing they are able to pay their workers much less than what the local and state average wage for the occupation would have required.48

Wage theft is a massive problem in major H-2B industries: Employers have stolen over $2.2 billion from workers since 2000

As discussed in this report, H-2B workers are concentrated in a small number of industries and occupations. Data on labor standards enforcement paint a picture of rampant wage theft and lawbreaking by employers in those few industries that employ most H-2B workers, revealing that workers are being recruited into industries where they will be vulnerable. This is cause for concern, but especially so now given the rapid growth in the H-2B program and employer pressure to change the law to allow them to hire through H-2B for year-round jobs.

DOL’s Wage and Hour Division (WHD) publishes and annually updates tables with summary data on the outcomes of WHD enforcement actions in what it calls “industries with high prevalence of H-2B workers.” The seven industries WHD lists in these data tables include landscaping services, janitorial services, hotels and motels, forestry, food services, construction, and amusement. Data on the top H-2B occupations (from the USCIS H-2B Employer Data Hub and DOL labor certifications cited in Tables 1 and 4) show that the vast majority of H-2B jobs that are certified by DOL and approved by USCIS are within these broad industries.49

The published WHD enforcement data include tables for individual fiscal years in four different categories, for fiscal years 2014–2024.50 WHD previously published data going back to 2000, but they are no longer available online (but have been preserved by the author and used for this analysis).51 The first set of tables, “Compliance Action Summary,” includes data on violations of all wage and hour laws enforced by WHD in the listed industries. The second set of tables, “H-2B Violations Only,” summarizes employer violations of H-2B program laws and regulations. The third set, “FLSA Violations Only,” summarizes employer violations of the Fair Labor Standards Act. The final set, “All Other Violations,” summarizes violations of all laws that WHD enforces, except for violations of FLSA or H-2B laws and regulations.

It is important to note that the violations and back wages owed that are detailed in these tables from WHD do not represent enforcement actions that involve only H-2B workers; they represent violations and back wages owed to any worker in the seven selected H-2B industries. These may include U.S. citizens, lawful permanent residents (i.e., green card holders), H-2B workers, or workers of any other immigration status, including unauthorized immigrant workers.

Table 5 sums the total numbers of listed compliance actions and employees involved, along with the total amounts of back wages owed and civil money penalties (CMPs) across all 25 fiscal years, 2000–2024, adjusting WHD’s data on back wages owed and CMPs assessed to constant 2024 dollars. The average back wages owed per employee were calculated from WHD’s data and are also included.

Table 5

Table 5 shows that across the 2000–2024 period, there were 247,180 compliance actions by WHD, and over 2 million workers were involved—i.e., were potential wage theft victims—in the cases that detected violations. Over 1.8 million of those workers were assessed by WHD to have actually been victims of wage theft—that is, their employers had failed to pay them the full wages to which they were entitled by law.

For those 1.8 million employees, WHD assessed a total of over $2.2 billion in back wages that were owed to them by their employers during the 25 fiscal years from 2000 through 2024. That’s an average of $89.5 million stolen per year from low-wage workers in the main industries that employ H-2B workers. Such a large dollar amount of stolen wages is particularly shocking when considering that most of the jobs in the seven major H-2B industries are associated with very low wages, as shown in Table 4.

It’s also important to remember that $2.2 billion represents only the extent of wage theft detected in the cases WHD investigated. There is no way to know the actual amounts of wages stolen in these industries. We do know that workers, especially low-wage workers—regardless of whether they are U.S.-born or foreign-born—often hesitate to report wage and hour and labor violations for fear of retaliation.52 We also know that WHD has limited investigative capacity, with annual funding that is flat53 and record-low numbers of WHD investigators on the job, with only 611 policing a labor market of 170 million workers as of May 2025.54 For these reasons, the actual extent of wage theft is likely higher—perhaps significantly higher—than $2.2 billion.

Table 5 also shows that on average, each worker who was assessed back wages was owed $1,228 by their employer. Back wages owed to workers were highest in construction with an average of $1,768 per worker. The second-highest amounts of back wages owed per worker were in landscaping—the industry that every year accounts for roughly 40% of all H-2B jobs—at $1,202 per worker.

In terms of civil money penalties, the total amount assessed during 2000–2024 was nearly $167.6 million. The largest share, $96.1 million (representing 57.3% of the total penalties), was assessed in food services. Construction accounted for 17.2% of the CMPs assessed at nearly $29 million.

The best solution: Major structural reforms to H-2B that provide a path to permanence for workers

As this report has shown, H-2B workers are underpaid and can only make temporary minor contributions to local economies under the status quo. Meanwhile, employer groups are lobbying furiously to expand the H-2B program by changing the law to allow employers to hire H-2B workers for year-round jobs—despite the rampant wage theft and employer lawbreaking occurring in major H-2B industries.

However, if members of Congress and the Trump administration believe in improving wages and working conditions for all workers, they should send a message to the business community that rather than expanding the deeply flawed H-2B program, a major reform is long overdue and needs to move forward. President Trump and congressional leaders should revamp the H-2B program by providing migrant workers with new protections, fairer wages, and a path to permanent resident status and citizenship. They should also implement reforms that would improve the integrity of the program, for example, by revamping the DOL system for recruitment to ensure that employers make adequate and genuine attempts to recruit and hire U.S. workers for open temporary and seasonal jobs. The administration and Congress should also prohibit lawbreaking employers from being allowed to recruit and hire through the H-2B program.55

In general, legislation should be avoided that proposes to allow employers to hire more temporary H-2B workers or to hire through H-2B for permanent year-round jobs in industries like meatpacking. Instead, any proposed legislation should shift away from the use of temporary workers and create green cards—allowing migrant workers to stay in the United States permanently, increasing their economic contributions and participation in social and political life. That could contribute to stabilizing the workforce for employers and improving wages and working conditions for all workers, regardless of immigration status.56

In terms of federal rulemaking, President Trump already has the legal authority to direct the leadership at the U.S. Department of Homeland Security and the U.S. Department of Labor to implement the many needed reforms through new or updated joint regulations and agency guidance. As of yet, there is no evidence showing that the Trump administration acknowledges the flaws in the H-2B program and that it will make an attempt through the regulatory process to protect U.S. workers employed in H-2B industries or migrant H-2B workers. If the Trump administration decides to propose regulations that would improve labor standards in H-2B industries, they should include, at a minimum:

• the creation of a new registration system at DOL to screen and prohibit employers with a record of violating labor, wage and hour, civil rights, and anti-discrimination laws from hiring through the H-2B program57
• new regulations on wages and worker protections that require employers to pay the highest of the local, state, or national average wage for the specific job, and that end the use of employer-provided wage surveys to set H-2B wage rates
• improvement of the January 2025 final rule that provides H-2B workers with limited portability to change jobs and employers, by increasing transparency for H-2B workers and making it easier for them to leave an abusive employment situation

These executive reforms would ensure that H-2B workers are paid fairly, would help prevent employers with records of violating labor and employment laws from hiring through the H-2B program, and would make it easier for workers to leave an abusive employment situation without losing the ability to earn money for the rest of their authorized employment period in the United States.

Together, congressional and executive reforms could transform a program that brings a temporary, exploitable, and underpaid workforce into one that brings permanent workers with full and equal rights to the United States. These workers would make long-term contributions and investments in local economies across the country, including in rural areas that desperately need them.

Notes

1. Daniel Costa, Temporary Work Visa Programs and the Need for Reform: A Briefing on Program Frameworks, Policy Issues and Fixes, and the Impact of COVID-19, Economic Policy Institute, February 2021.

2. Immigration and Nationality Act of 1952, Section 101(a)(15)(h)(ii).

3. Immigration Reform and Control Act, Section 301(a).

4. Immigration Act of 1990, Section 205(g)(1)(B).

5. See for example, Daniel Costa, “Trump Attacks on Temporary Immigration Protections Like TPS Hurt the Economy and Strip Millions of Their Workplace Rights,” Working Economics Blog (Economic Policy Institute), May 12, 2025.

6. See H.R. 1, 119th Congress (2025–2026); 139 Stat. 72, Pub. L. No. 119-21 (07/04/2025).

7. See for example, Figure 8 and discussion in William H. Frey, Immigration Drives the Nation’s Healthy Post-Pandemic Population Growth, New Census Data Show, The Brookings Institution, January 2025.

8. See Question 6 in Daniel Costa, Josh Bivens, Ben Zipperer, Ismael Cid-Martinez, and Daniel Perez, FAQ: Immigrants and the Economy, Economic Policy Institute, April 15, 2025.

9. Numerous reports, investigations, and government audits have shown this over the years. See for example, Michelle Chen, “These Guestworkers Just Won $20 Million Back from the Company That Trafficked Them,” Nation, October 2, 2015; Jessica Garrison, Ken Bensinger, and Jeremy Singer-Vine, “The New American Slavery: Invited to the U.S., Foreign Workers Find a Nightmare,” BuzzFeed News, July 24, 2015; U.S. Government Accountability Office, H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers, GAO-15-154, reissued May 30, 2017; and Colleen Owens et al., Understanding the Organization, Operation, and Victimization Process of Labor Trafficking in the United States, The Urban Institute, October 2014.

10. Daniel Costa, As the H-2B Visa Program Grows, the Need for Reforms That Protect Workers Is Greater Than Ever: Employers Stole $1.8 Billion from Workers in the Industries That Employed Most H-2B Workers over the Past Two Decades, Economic Policy Institute, August 2022.

11. For a more detailed explanation, see Andorra Bruno, The H-2B Visa and the Statutory Cap (Congressional Research Service, R44306, updated February 28, 2020), 6.

12. Andorra Bruno states that: “DHS determined that 64,716 was the most appropriate maximum number of additional H-2B visas authorized under the special FY2017 provision, this being ‘the number of beneficiaries covered by H-2B returning worker petitions that were approved for FY 2007.’” The H-2B Visa and the Statutory Cap, Congressional Research Service, R44306, updated February 28, 2020.

13. See Amendment 1, an amendment to the fiscal year 2026 House Homeland Security appropriations bill, offered by Reps. Andy Harris, Dan Newhouse, Chuck Edwards, and Henry Cuellar. See discussion in Jennifer Scholtes, “House Appropriators Unite Around Major Visa Changes to Grow H-2A, H-2B Workforce,” PoliticoPro, June 24, 2025.

14. Daniel Costa, As the H-2B Visa Program Grows, the Need for Reforms That Protect Workers Is Greater Than Ever: Employers Stole $1.8 Billion from Workers in the Industries That Employed Most H-2B Workers over the Past Two Decades, Economic Policy Institute, August 2022.

15. If an H-2B worker had an approved petition for a change of employer in the following fiscal year after having an approved petition for new employment, then they should be counted as an individual H-2B worker. However, it is possible that some H-2B workers may have an approved petition for new employment in the same fiscal year as an approved petition for changing employers, which would lead to those workers being counted twice in the data.

16. Approved H-2B petitions for an employment change with the same employer, new concurrent approvals, and amended approvals were excluded from the calculation and totaled 8,444.

17. Authors’ analysis of Office of Foreign Labor Certification, Performance Data, H-2B data file for fiscal year 2024, U.S. Department of Labor.

18. This paragraph largely rests on the work of Calamuci. See David Calamuci, “Return to the Jungle: The Rise and Fall of Meatpacking Work,” New Labor Forum17, no. 1 (Spring 2008): 66–77.

19. Unionization rates cited in this paragraph are authors’ analysis of Current Population Survey Outgoing Rotation Group microdata, EPI Current Population Survey Extracts, Version 2025.6.11, https://microdata.epi.org.

20. David Calamuci, “Return to the Jungle: The Rise and Fall of Meatpacking Work,” New Labor Forum  17, no. 1 (Spring 2008): 66–77.

21. Industry definition changes between 1983 and 2024 make it impossible to match unionization rates exactly over this entire period, but the “meat products” manufacturing sector of 1983 corresponds tightly to the “animal slaughtering and processing” that is measured post-2003.

22. H-2B jobs are sometimes denied certification by the U.S. Department of Labor for that reason. See for example, Rachel Oatman, “Judge Says Smithfield Lacks Documentation for H-2B Certification,” Meat + Poultry, December 7, 2023.

23. See for example, C.J. Miller, “Meat and Poultry Processors Ask Lawmakers to be Included in H-2A Farm Labor Reform,” Hooiser Ag Today, June 1, 2025; Donnelle Eller and Stephen Gruber-Miller, “Iowa’s Largest Pork Producer Urges Year-Round Visas for Foreign Workers to Meet Labor Shortage,” Des Moines Register, July 21, 2021.

24. Tina L. Saitone, K. Aleks Schaefer, Daniel Scheitrum, Shawn Arita, Vince Breneman, Rebecca Nemec Boehm, and Josh G. Maples, “Consolidation and Concentration in U.S. Meat Processing: Updated Measures Using Plant-Level Data,” Review of Industrial Organization 64 (October 2023): 35–56.

25. See Azar, Ionescu, and Steinbaum for evidence that labor market concentration harms workers’ bargaining position, as well as evidence that concentration is much more pronounced in rural areas of the United States. José Azar, Ioana Marinescu, and Marshall Steinbaum, “Labor Market Concentration,” Journal of Human Resources  57, no. S (1 April 2022): 167–199.

26. Authors’ analysis of Current Employment Statistics, Bureau of Labor Statistics, U.S. Department of Labor. The series code for employment in the “animal slaughtering and processing” industry is CES3231160001. 

27. Authors’ analysis of data obtained from the U.S. Census data page (data.census.gov), using NAICS code 3116. Estimates of gross state product (GSP) are from the Bureau of Economic Analysis GDP-by-State data program.

28. Tina L. Saitone, K. Aleks Schaefer, Daniel Scheitrum, Shawn Arita, Vince Breneman, Rebecca Nemec Boehm, and Josh G. Maples, “Consolidation and Concentration in U.S. Meat Processing: Updated Measures Using Plant-Level Data,” Review of Industrial Organization 64 (October 2023): 35–56.

29. EPI analysis of Current Population Survey microdata, EPI Current Population Survey Extracts, Version 2025.6.11, https://microdata.epi.org.

30. The foreign-born share of the workforce in meatpacking is likely to be significantly higher, as Angela Stuesse and Nathan Dollar have argued, in part because of the inability of population surveys to adequately reflect what researchers have observed in ethnographic research. See Angela Stuesse and Nathan T. Dollar, “Who Are America’s Meat and Poultry Workers?” Working Economics Blog (Economic Policy Institute), September 24, 2020.

31. Amy Melissa Gass Kandilov, “The Value of a Green Card: Immigrant Wage Increases Following Adjustment to U.S. Permanent Residence,” Unpublished paper, University of Michigan, 2007.

32. Sankar Mukhopadhyay and David Oxborrow, “The Value of an Employment-Based Green Card,” Demography 49 (February 2012): 219–237.

33. Ryan Edwards and Francesc Ortega, “The Economic Contribution of Unauthorized Workers: An Industry Analysis,” National Bureau of Economic Research, Working Paper 22834, November 2016.

34. To calculate this, we first need an estimate of the workforce that would see a clear wage gain from normalization of immigration status. 30% of the animal processing workforce is foreign-born and lacks citizenship. This number is likely higher in meatpacking than poultry processing, but for now we will use it to be conservative. If we assume (also likely conservatively, given qualitative research on this subject) that 5% of the noncitizen workforce in the sector has a green card, this leaves 25% of meatpacking workers who would see a 20% wage increase due to normalization of status. If we multiply the 25% of the workforce that this wage gain would apply to by the 20% increase and then by 75% (which is the share of industry-average wages they earn), this yields the 3.75% stated here.

35. This is calculated by multiplying 3.75% by the estimated 2024 payroll of $30 billion in the industry.

36. Lauren A. Apgar, Authorized Status, Limited Returns: The Labor Market Outcomes of Temporary Mexican Workers, Economic Policy Institute, May 2015.

37. William W. Olney, “Remittances and the Wage Impact of Immigration,” Working Paper, Williams College, 2014.

38. On remittances from the United States, see Ng and Serrano, “A Remittance Tax Would Be Unfair, Regressive, and Contrary to International Commitments, but Would Have Limited Effects and No Significant Impact on the Balance of Payments  ,” BBVA Research Note, May 2025. On the overall labor earnings of immigrants in the United States, see Daniel Costa, Josh Bivens, and Ben Zipperer, “Immigration FAQ,” Economic Policy Institute, April  2025.

39. Christian Dustmann and Josep Mestres, “Remittances and Temporary Migration,” Journal of Development Economics 92, no. 1 (May 2010): 62–70.

40. Pia Pinger, “Come Back or Stay? Spend Here or There? Return and Remittances: The Case of Moldova,” International Migration 48, no. 5 (October 2010): 142–173.

41. The overall remittance rate for the United States is roughly 11% ($230 billion in remittances on an immigrant wage bill of $2.1 trillion). Say that half of the foreign-born, noncitizen population of immigrants in the United States can be considered temporary and that this group makes 75% what foreign-born citizens make. This would imply that temporary immigrants account for 10% of the entire immigrant wage bill. Given this information and the fact that temporary immigrants’ remittance rates are 30% higher, we can calculate the remittance rate for permanent immigrants by dividing the overall remittance rate of 11% by the sum of 0.9 and (1.3*0.1), giving a permanent remittance rate of 10.7%. Multiplying by 1.3 gives a temporary remittance rate of 13.9%.

42. This calculation is based on the fact that the current payroll of meatpacking is $30 billion. Because foreign-born workers without permanent legal status constitute 25% of the workforce but make just 75% what other workers do, this implies their share of the overall wage bill is just under 19% (or $5.7 billion). If normalizing status reduces their remittance rate by 3.2% (the difference between the temporary remittance rate of 13.9% and the permanent remittance rate of 10.7% from the previous note), multiplying this by $5.7 billion and then by 1.2 to account for the wage boost from normalization implies $220 million in lower remittances and greater demand for local output.

43. See for example, David J. Bier, “The Facts About H-4 Visas for Spouses of H-1B Workers,” Cato At Liberty Blog (Cato Institute), June 16, 2020.

44. The assumptions on employment rates and wage rates of spouses are likely highly conservative. The employment rate of prime-age immigrants in the United States is closer to 80%, and even assuming all “spouses” of immigrants are female, the gender wage gap for low- to middle-wage workers is well under a third.

45. U.S. Department of Homeland Security and Employment and Training Administration, U.S. Department of Labor, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Final Rule, 80 Fed. Reg. 24146 (April 29, 2015).

46. The amounts in the DOL data used to calculate these average wage rates are based on the lowest hourly wage that employers have been allowed to pay the workers who will fill the H-2B jobs that DOL has certified as demonstrating a legitimate need to hire an H-2B worker.

47.  8 U.S.C. § 1101(a)(15)(H)(ii)(b).

48. See for example, Daniel Costa, “H-2B Crabpickers Are So Important to the Maryland Seafood Industry That They Get Paid $3 Less per Hour Than the State or Local Average Wage,” Working Economics Blog (Economic Policy Institute), May 26, 2017.

49. Authors’ analysis of Office of Foreign Labor Certification, “H-2B Temporary Non-Agricultural Program – Selected Statistics, Fiscal Year (FY) 2024,” Employment and Training Administration, U.S. Department of Labor; and USCIS, “H-2B Employer Data Hub,” U.S. Department of Homeland Security.

50. Wage and Hour Division, “Industries with High Prevalence of H-2B Workers” [data tables for fiscal years 2014–2024], U.S. Department of Labor.

51. Data on file with authors.

52. See, for example, Laura Huizar, Exposing Wage Theft Without Fear: States Must Protect Workers from Retaliation, National Employment Law Project, June 2019; and Susan Ferriss and Joe Yerardi, “As Guest Workers Increase, So Do Concerns About Wage Cheating,” The Center for Public Integrity, March 2, 2022.

53. See for example, Daniel Costa, Josh Bivens, Ben Zipperer, and Monique Morrissey, The U.S. Benefits from Immigration but Policy Reforms Needed to Maximize Gains: Recommendations and a Review of Key Issues to Ensure Fair Wages and Labor Standards for All Workers, Economic Policy Institute, October 2024.

54. Jake Barnes, Janice Fine, Daniel J. Galvin, Jenn Round, and Hana Shepherd, “To Help U.S. Workers, We Need Labor Standards Enforcement, Not Mass Deportations,” Data Brief, Workplace Justice Lab, Rutgers University, May 2025.

55. There are numerous investigative reports detailing examples of employers who have committed egregious violations of the law—breaking labor, employment, and anti-discrimination laws—whom federal agencies have allowed to continue hiring through the H visa programs. See for example, Sam Tabachnik, “Wage Theft, Abuse and Control: How Colorado Farms Take Advantage of Migrant Workers,” Denver Post, September 5, 2024; Teresa Cotsirilos, “The Dark Side of America’s Sheep Industry: Sheepherders Face Wage Theft, Isolation, Hunger and Alleged Abuse.” High Country News, October 2, 2023; Ken Bensinger, Jessica Garrison, and Jeremy Singer-Vine, “Employers Abuse Foreign Workers. U.S. Says, By All Means, Hire More.” BuzzFeed News, May 12, 2016; Ken Bensinger, Jessica Garrison, and Jeremy Singer-Vine, “The Pied Piper Of North Carolina,” BuzzFeed News, December 29, 2015.

56. See for example, Daniel Costa, Josh Bivens, Ben Zipperer, and Monique Morrissey, The U.S. Benefits from Immigration but Policy Reforms Needed to Maximize Gains: Recommendations and a Review of Key Issues to Ensure Fair Wages and Labor Standards for All Workers, Economic Policy Institute, October 2024.

57. See additional discussion in Daniel Costa, As the H-2B Visa Program Grows, the Need for Reforms That Protect Workers Is Greater Than Ever: Employers Stole $1.8 Billion from Workers in the Industries That Employed Most H-2B Workers over the Past Two Decades, Economic Policy Institute, August 2022.

Immigration has been a source of strength for the U.S. economy and has great potential to boost it even more, but the current U.S. immigration policy regime squanders too many of its potential benefits by depriving immigrants of their full rights as workers and granting employers too much power to manipulate the system. It is crystal clear that immigration expands U.S. gross domestic product and is good for growth. And immigration overall has led to better, not worse, wages and work opportunities for U.S.-born workers. Yet, it is also clear that when workers are denied full and equal labor and employment rights, as some immigrants are when their immigration status is used against them—it makes immigrant workers’ lives more precarious and can harm the people with whom they work side-by-side in the same industries.

Even in the face of our unjust policy regime, immigration today provides numerous benefits to the U.S. economy. The nation could benefit even more, and the benefit could be shared more widely with a smarter set of immigration policies that benefit all workers.

The benefits are too often overlooked, and the challenges it poses for policymakers and U.S.-born workers are often grossly exaggerated. In this paper, we assess the evidence on immigration’s effect on a number of economic outcomes given the policy status quo. We then go on to highlight how immigration status impacts wages and working conditions, and finally, offer recommendations on how to craft a better immigration policy regime—one that grants immigrants their full rights as workers in U.S. labor markets, generating broad benefits for U.S. and foreign-born workers alike. Our key findings are: 

• Immigration is enabling economic growth despite the sharp deceleration in the growth of the U.S.-born workforce. Immigrants have risen as a share of the U.S. population in recent decades. Because immigrants are younger and more likely to be working age than the U.S.-born population, they have risen even faster as a share of the labor force. These trends are driven as much by the sharp deceleration of growth of the U.S.-born workforce as they are by a sharp increase in the absolute scale of immigration flows. Even when available data are adjusted to better reflect the notable increase in immigration in recent years, the growth of the foreign-born population since 2022 is not out of line with other historical periods (and is lower than what prevailed in the late 1990s). What is unprecedented in recent years is the rapid deceleration of growth in the U.S.-born population—a population that will soon start seeing outright contraction. Without immigration, the prime-age workforce (between the ages of 25 and 54) would have seen essentially no growth at all in the past quarter century, dramatically constricting the ability to grow our economy and staff key industries. 
• Immigration does not reduce the number of jobs available for U.S.-born workers and has provided a source of deflationary pressure in recent years. Macroeconomic policymakers like the Federal Reserve and Congress have both the necessary tools and the obligation to ensure that demand in the economy is strong enough to absorb willing workers in a reasonable amount of time. Historical periods when job opportunities have become scarce were not driven by increased immigration flows but instead by the failures of macroeconomic policymakers to respond in a timely fashion to weakness in demand for labor. Immigration flows generally do not make policymakers’ task of matching macroeconomic supply and demand any harder because immigrants add to both economywide supply (by increasing labor supply) and demand (by buying goods and services). Overall, immigrants likely tilt this balance more toward supply relative to U.S.-born workers, but only by a bit. This net supply increase is sometimes quite useful—by boosting supply a bit more than demand over the 2021–2023 period, immigration provided a source of deflationary pressure that helped bring inflation down in those years, while also assisting in preventing a recession. 
• Immigration’s effects on U.S. wages overall range from neutral to slightly positive. Immigrant workers tend to complement rather than substitute for U.S.-born workers of similar educational levels. The educational mix of immigrants is much more similar to that of U.S.-born workers than is often recognized, hence limiting the scope for competition from immigrants to lower wages for any U.S.-born workers of any particular educational background. Additionally, while the overall wage effects from immigration are neutral to slightly positive for U.S.-born workers, it is true that our flawed immigration policy regime often sees employers use the precariousness of some immigrant workers to suppress wage growth in particular sectors. Immigration reforms that remove this precariousness would aid the wage growth of both immigrants and the U.S.-born workers they work alongside in these labor markets. 

• Immigration is clearly positive for the balance of taxes and spending at the federal level. Immigrants pay substantial amounts of tax (nearly $100 billion in the most recent years, and almost $60 billion in federal taxes) and yet are often excluded from drawing on key benefits. At the state and local level, the balance is much closer. The types of goods and services provided by these governments (public education and infrastructure, for example) are generally more available to immigrant families regardless of their legal status. Taken together, the net of federal and state/local taxes and spending stemming from immigration flows is positive, with immigrants paying more in taxes relative to what they draw in spending than U.S.-born households.

• Increased housing costs are caused not by immigration, but by the failure of U.S. housing markets to meet any new demand with more housing units rather than higher prices. Immigration, like any source of population growth, can put upward pressure on housing prices on the demand side. Yet the rapid rise in housing costs over the past decade has come at a time when overall population growth has slowed significantly—indicating strongly that the root of the problem is a dysfunctional housing supply side that translates any housing demand increase into sharp price increases rather than newly constructed housing. This can be seen most clearly in the very large run-up in home prices in 2020 and 2021, just as rates of immigration were plummeting. Further, higher rental costs stemming from the intersection of population growth and supply-side rigidity actually boost housing wealth for homeowners, who are disproportionately U.S.-born. Finally, immigrants are a key source of labor that boosts the supply side of housing markets. Anti-immigrant reforms (like mass deportations) done in the name of preserving housing affordability for U.S.-born workers could well see large increases in housing costs due to resulting shortages of workers employed in residential construction.

• People who immigrate into the United States increase the economy’s stock of human capital and ideas, two crucial ingredients for long-run economic growth. Immigrants can provide a key source of innovation and economic vitality. If immigration into the United States allows talented individuals a better chance of realizing their full potential and contributing to economic activity at their maximum level than they would have had in their country of origin, this immigration flow can be highly beneficial for both the U.S. and global economies. Research on past waves of immigration shows that they had positive causal effects on long-run economic growth in the United States. 

• Policy reforms that grant immigrants full rights in the labor market spur benefits for everyone in the U.S. economy. The evidence is clear that workers who lack formal immigration status or have precarious or temporary immigration statuses experience degraded pay and conditions. Thus, the most obvious and pressing policy priority is to provide a quick and broad path to legal status and a green card (and eventually citizenship) for the currently unauthorized immigrant population. Regularization would provide a near instant wage boost for these workers, which would in turn bid up wages in the labor markets they share with U.S.-born workers. The same logic, backed by research, suggests that future immigration flows should rely much more on green cards than temporary work visas. Green cards give immigrant workers the ability to shop around for the best fit for their skills and abilities, which breaks employers’ power over these workers and helps lift standards for all workers. Allowing temporary migrant workers to control their own visas rather than being tied to specific employers would also be a win-win for both foreign-born and U.S.-born workers.
• Underresourced labor standards enforcement is enabling low-road employers to abuse immigrant workers with impunity and flout basic worker protections. Rather than spending tens of billions of dollars per year for immigration enforcement, what’s needed are more resources and staffing for labor standards enforcement agencies and a more strategic focus on labor standards enforcement that does not take immigration status into account. Lawbreaking employers who abuse workers of any status should face much higher chances of being caught and much higher penalties than they currently do.

Immigration to the U.S. provides many economic benefits, and those benefits would increase substantially if immigration policy was improved to guarantee equal and enforceable labor and workplace rights. With proper alignment with other policy spheres, such as investment in physical and human infrastructure, win-win opportunities abound for the United States with respect to future immigration flows or even expansions. 

Current and historical immigration and where immigrants are in the U.S. economy

Immigrants in the economy and recent growth in the immigrant population

Migrants and immigrants who resided in the United States in 2022 accounted for 13.8% of the population, as measured by the American Community Survey (ACS). The ACS is perhaps the most commonly used source for the size of the foreign-born population. However, we can get slightly more timely data from a different data source, the Current Population Survey (CPS). The CPS is also the most cited source of data on labor market trends in the United States. Because of this, we also show CPS-based trends in the annual foreign-born shares of the U.S. population in Figure A. In 2023, this share was 14.9%.1

Figure A

Because so many debates around immigration center around its effect on U.S. labor markets, in Figure B we also present the number and share of immigrants in the overall labor force, defined as those ages 16 and older who are working or seeking jobs. As of last year, the U.S. workforce had 31.0 million immigrants, or 18.6% of the total U.S. labor force. Since 2000, immigrants have been more likely to be in the labor force than U.S-born workers, largely reflecting the fact that immigrants are younger and more likely to be of working age than the U.S. born population.2

Figure B

Immigrant flows have fluctuated greatly in recent years. During the beginning of the Trump administration and also the beginning of the coronavirus pandemic, immigration slowed due to border closures and other restrictions. As those restrictions were lifted, a strong U.S. labor market and high employer demand for workers coincided with a reestablishment of the administrative elements of the immigration system and higher immigration flows. Immigration flows over the last two years have been relatively high according to some estimates, prompting calls for more immigration enforcement at the U.S. southern border and restrictions on asylum, and discussions about the number of new arrivals that the U.S. economy can absorb.

However, Figure C shows that while recent flows of migrants and immigrants into the United States have been high, the number of immigrants residing in the United States at any given point is growing at a rate similar to other periods of high immigration like the late 1990s. The decennial censuses estimated that the foreign-born (immigrant) population grew by 4.6% annually between 1990 and 2000. Between 1994 and 2000, the immigrant population in the CPS grew by 5.6% annually. In contrast, recent data from the CPS show that the 2022–2023 immigrant population growth rate was 3.7%.

Figure C

Recently there has been some debate as to whether the CPS may underestimate recent growth in immigration levels.3 After making an adjustment to account for this undercount, the CBO (2024) estimated significantly higher immigration levels using CPS data, but even with this adjustment, the modified CBO/CPS flows between 2022 and 2023 are still lower than estimates from the late 1990s. The modified CBO/CPS immigrant population growth between 2022 and 2023 was 4.8%, compared with an annual rate of 5.6% between 1994 and 2000 using the unmodified CPS.4

The rates in Figure C also show how U.S.-born population growth has been declining, from 0.9% annually in the 1990s to 0.2% in 2022–2023. Figure D examines this in more detail, focusing on the prime-age labor force—i.e., those who are ages 25 through 54 and employed or seeking work. Over the last three decades, the total size of the U.S.-born prime-age labor force has essentially stayed the same. In fact, were it not for immigration, the total prime-age U.S. labor force would have stagnated: Over 95% of the cumulative growth of the labor force in the past three decades is due to immigration.

Figure D

Occupations that rely heavily on immigrants

In 2023, immigrants were about 18.6% of U.S. employment, and many immigrants are disproportionately concentrated within a select number of occupations. Table 1 shows the top-ten major occupation groups with the highest shares of immigrants. These occupations have immigrant shares of employment ranging from about 21% to 40%, and together they comprise just over half (54%) of all employed immigrants in 2023.

Table 1

Immigrants are often associated with agricultural occupations—and they do comprise two-thirds of the workforce in crops (Fung et al. 2023), but because of the relatively small total size of agricultural occupations overall, most immigrants work in other types of jobs. For example, in 2023, 2.2 million immigrants were employed in “Building and grounds cleaning and maintenance” occupations, like janitors, custodial workers, and landscapers, accounting for 40% of employment in the occupation. For the purpose of comparison, the 2.2 million immigrants in the occupation is the roughly the same number of all hired farmworkers, including immigrants and U.S.-born citizens (USDA 2024). Immigrants were also about one out of every four (24%) workers in “Healthcare support occupations,” which include jobs like home care aides and nursing, dental, and medical assistants.

While immigrants work in some high-paying occupations, many of the occupations in which immigrants are disproportionately concentrated typically pay low wages. Table 1 shows that a majority of the top-ten occupation groups with higher shares of immigrants have median hourly wage rates that are substantially lower than the national median wage. For example, building and grounds cleaning and maintenance workers, who had a national median wage of $17 an hour in 2023, were paid 32% less than the 2023 national median wage of $25 per hour.

Health care support occupations are also paid a wage that is much lower than the median national wage (28% lower). These occupations, however, are expected to be among the fastest growing over the next decade according to the Bureau of Labor Statistics (BLS 2023). If BLS employment projections turn out to be correct, and if we assume that immigrant workers will continue to fill the same share of jobs in the occupation that they do now (24%), then that implies over 250,000 more immigrants will be needed for health care support jobs alone between 2023 and 2032 (BLS 2024b). Low wages and large workforce requirements suggest that we should ensure that immigrants who fill these jobs arrive with full and equal employment rights and a path to citizenship. The second-fastest growing occupation according to BLS will be in computer and mathematical occupations, an occupation that is expected to grow by 15.2% (BLS 2023) and in which 27% of current workers are immigrants.

Economic effects and impacts of immigration

This section provides a review of arguments and evidence on how immigration can affect economic outcomes. We focus on a range of issues in which particular concerns about the effects of immigration have been commonly raised in public debates: jobs, wages, fiscal effects, housing, and long-run economic growth. We also highlight in each section how policy changes can loosen any particular trade-off that might bind from balancing the benefits of higher immigration and the economic welfare of U.S.-born residents.

This focus on the economic welfare of U.S.-born residents is not because it is the only population we care about. It is instead because this is a politically salient issue, and because disentangling the effects on U.S.-born residents helps inform sound policymaking to promote broadly shared prosperity.

For example, calculations are occasionally presented regarding the “economic impact” of immigration that simply tally up all spending done in the U.S. by immigrants. This is a large-sounding number (on the order of hundreds of billions of dollars at least). But increasing overall gross domestic product (GDP) or overall consumer spending by increasing the number of people (and workers) in an economy does not mean much in terms of impacting the welfare of any individual (whether immigrant or native-born) in that country. What matters far more for human welfare is income or spending per capita, and how it grows over time.

An equally useless exercise would be to remove a particular set of immigrants from calculations of per capita GDP—note that this removal increases per capita GDP—and suggest that this tells us something about the economic effect of immigration. Removing lower-income segments will inflate the average income of any group simply through composition effects. This removal does nothing to boost any real person’s income or living standards; it is simply an arithmetic quirk.

In what follows, we aim to provide a serious discussion of the substantive effects of immigration on various economic outcomes.

Employment effects of immigration

A common trope in immigration debates is that immigrants take jobs away from native-born workers. The weakness in this argument is fairly obvious: It presumes there are a fixed number of jobs that does not respond at all to rising immigration flows. But that’s not how employment generation works. Take the most obvious example of why this reasoning is wrong: There are 70 times more people in the United States as there are in Norway (a similarly rich country). There are also almost 70 times as many jobs in the United States as there are in Norway. Is it just a lucky coincidence that the United States was able to generate 70 times as many jobs as Norway and give decent employment outcomes for our much larger population?

Obviously not. When an economy is being managed well, it should be providing a job for essentially all people in the economy who want to work regardless of how large or small that number of people is. Immigration does not change this, and it does not even put much pressure at all on the mechanisms that are supposed to ensure near full employment of every person who wants a job.

In the jargon of macroeconomists, unemployment rises when growth in aggregate demand lags behind growth in potential output. Aggregate demand is simply all desired spending in the economy; consumption spending by households, investment spending by businesses, and public spending by governments. Potential output is a measure of how much the economy could produce if nearly all of the economy’s willing workers were employed. When aggregate demand falls beneath the economy’s potential output, then unemployment rises.

This logic might at first glance seem to buttress fears about increased immigration in generating unemployment—a larger labor force boosts the economy’s potential output, and if this boost pushes it above the economy’s aggregate demand, then unemployment results. But the fault in this story is essentially never that potential output is rising too fast; it is instead that aggregate demand is falling too rapidly (or rising too slowly).

The key insight here is that aggregate demand moves far more quickly than potential output, and it swings up and down much more in compressed periods of time. In short, recessions and recoveries are clearly driven by these quick and large movements in aggregate demand, not in the steady rise of potential output.

So long as policymakers recognize any change in potential output in a reasonably short time frame—like an increased labor supply stemming from immigration—then they can adjust aggregate demand to ensure enough jobs are created to keep unemployment rates from rising. Aggregate demand can be boosted through either monetary or fiscal policy interventions, with the Federal Reserve using monetary policy tools like interest rate cuts to boost demand and Congress and the president setting taxes and spending at levels that boost demand when that is needed (in practice, fiscal policy is the more powerful tool if used effectively). Support for the idea that policy can quickly restore falls in aggregate demand is provided by the U.S. economic recovery from the COVID-19 recession. In late 2020, there was a burst of job creation as the first wave of the pandemic eased and the economy reopened. Nevertheless, in December of that year, the unemployment rate remained high at 6.7%, and job growth had turned negative. But thanks to fiscal recovery packages passed in December 2020 and March 2021, by the end of 2021 the unemployment rate had already fallen below 4.0%—essentially matching the immediate pre-pandemic level.5

Further, policymakers in charge of aggregate demand really do not have to try all that hard to keep aggregate demand matched to potential output as immigration flows rise. Immigrants do boost potential output—but they also boost aggregate demand. That is, immigrants are not only workers, but they are also consumers.

Relative to U.S.-born residents, immigrants do tend to boost potential output a bit more than they boost aggregate demand, mostly by virtue of being younger and hence more likely to work than U.S.-born residents.6 Because immigration boosts potential output a bit more than aggregate demand, the net effect is slightly deflationary. Overall, this deflationary slant of immigration is neither good nor bad. Sometimes deflationary influences in the economy need to be counterbalanced by policymakers, but sometimes deflationary influences just help reach targets policymakers are already aiming for.

The obvious example of the latter is the beneficial deflationary effect of a rebound in immigration following the immigration collapse of 2020. The pandemic led to a very sharp fall in net immigration in that year (in part because of slowdowns of visa processing at U.S. consulates around the world and mass layoffs in sectors with a heavy immigrant worker presence). As the pandemic also led to a sharp rise in inflation as the economy recovered, policymakers began looking for ways to reduce these inflationary pressures in late 2021 and 2022. The rebound in immigration flows in 2022 and 2023 clearly went in the correct direction to help tamp down inflation, though this effect can be exaggerated. The overall dynamics of inflation over the whole 2021–2023 period were generally not driven by the labor market. Wage growth consistently muffled instead of amplified price inflation, and it was the extraordinary growth in corporate profit margins that was a key part of the initial inflation surge in 2021.7 Though inflation was not caused by labor markets, the rebound of immigration flows in 2022 and 2023 provided some measure of deflationary relief in those years.

It is also worth noting that immigration is not the only challenge facing policymakers in charge of aggregate demand. Similar challenges exist for all sorts of economic influences—technological change, exchange rate movements driven by events abroad, sharp changes in household wealth driven by financial market excesses, and many others. There is nothing uniquely challenging about sustaining job creation in the face of immigration flows if policymakers have the will to do it. If any significant number of U.S.-born workers are finding it hard to find work, it is macroeconomic policymakers, not immigrants, who are to blame.

As important as it is for policymakers to keep unemployment low for all workers, this consideration should be mostly irrelevant when considering optimal immigration policy. U.S. immigration policy should decide the level and composition of immigrant flows that the U.S. should seek to absorb—taking into consideration the need for new workers or to meet humanitarian obligations, etc.—and in terms of the effect of that immigration policy on jobs and employment for U.S.-born workers, macroeconomic policymakers should just seek to keep aggregate demand at levels that keep unemployment low and jobs plentiful for the number of people entering the workforce.

It is worth reemphasizing how much the experience of the U.S. labor market in the years after the pandemic highlights the point that there is no trade-off between immigration and job opportunities for U.S.-born workers. Even as there has been an increased inflow of immigrants and immigrant workers in recent years following the dip driven by the Trump administration and pandemic shutdowns, unemployment rates for U.S.-born workers are historically low, and the share of prime-age U.S.-born workers with a job is historically high. While we remain concerned that in the medium- to long-term, there are potential significant challenges to having millions of new workers entering the workforce who only have temporary, precarious statuses, it is nevertheless an odd historical moment indeed to raise the specter that rapid growth of immigrant workers is hurting the job prospects of U.S.-born workers. Very simple policy changes—namely, providing these workers with full workplace rights and the ability to participate in society that comes with a green card—could blunt those challenges and maximize the economic benefits these new workers can bring.

Finally, we should note that while immigration poses no real challenge to creating enough jobs for U.S.-born workers, one particularly damaging form of immigration policy could profoundly affect these jobs: mass deportation. One example comes from a recent study by East et al. (2023), which looked at past episodes of significant deportations and found that for each 1 million immigrants seized and deported from the United States, 88,000 jobs were lost for U.S.-born workers. These deportations reduced local demand for output, which led to job loss, and they led to employers having to shut down all production in the face of key bottlenecks incurred by losing their immigrant workforce, including production that supported employment of U.S.-born workers.

Immigration and wages

One of the major concerns about immigration is that it could reduce the wages of U.S.-born workers. Yet across the economy broadly, a large body of empirical evidence suggests this concern is misplaced. A review by Peri (2014) of more than 270 estimates from 27 published studies found that the average effect of immigration on native-born wages is essentially zero. Two-thirds of studies were clustered around zero, finding small positive or small negative effects. The comprehensive review of immigration, wages, and employment by the National Academies of Science, Engineering, and Medicine (NASEM) found that “when measured over a period of more than 10 years, the impact of immigration on the wages of natives overall is very small” (NASEM 2017). Below we explain some of the mechanisms behind why increased immigration does not tend to harm the wages paid to U.S.-born workers, at least at the broader nationwide level.

The conventional warning about how immigration can reduce the wages of U.S.-born workers is a supply-side story in which large flows of immigrants push down the market wages of otherwise comparable native-born workers. In this story, the labor market employs some mix of workers of different education levels: workers with college degrees and workers without college degrees. Under this theory, the relative supply of and demand for these different types of workers determine their relative wages. Immigration can then change the wage structure by changing the mix of low-education and high-education workers. In particular, if immigration increases the relative supply of workers without a high school degree, there could be downward pressure on market wages for all low-education workers, including U.S.-born workers.

To a rough approximation, however, immigration in the United States in recent decades has not dramatically changed the relative mix of the workforce that has or doesn’t have college degrees. Figure E shows that the share of foreign-born workers with a college degree is similar to that of U.S.-born workers: About 4 in 10 people in the U.S. labor force has college degrees, whether or not they were born in the United States or in another country. This empirical fact greatly reduces the scope of any substitution between types of workers and therefore also limits any resulting wage effect of immigration on U.S.-born workers. Historically, increasing the number of immigrants has had little effect on the educational mix of U.S. workers.

Figure E

Wages are, of course, not solely determined by a simple model of college and noncollege labor, and the education distribution of immigrants is not completely identical to U.S.-born workers. There are relatively more foreign-born workers with no high school degree, but also relatively more foreign-born workers with advanced degrees. But adding more real-world complications to a simple model of wage determination also further limits the scope of immigration’s effect on the overall wages of U.S.-born workers.

For example, immigration to a particular area also increases demand for goods and services. As immigrants purchase food and housing, they raise the overall demand for labor, offsetting the potential wage decreases induced by increased labor supply. In addition, investment will eventually respond to the increased demand and also to the increased population growth that raises the relative productivity of physical capital. Once capital can adjust to the change in population, there is little to no long-run effect of immigration on average wages (Card 2012).

The naïve story about college and noncollege workers above implicitly assumes that at least within education categories, foreign-born workers are essentially identical to U.S.-born workers. However, empirical evidence like Peri and Sparber’s (2009) makes clear that even within education categories, U.S.- and foreign-born workers often have different skills and perform different tasks at work.

It is also useful to point out here that the idea or claim that most immigrants work in low-wage jobs is inaccurate. As depicted in Figure F, Kallick and Capote (2023) found that among persons who work full-time and year-round, the share of immigrants with higher-wage jobs that pay more than twice the median earnings level (17%) is the same as the share of U.S.-born workers. They also found that 65% of immigrant workers who work full-time and year-round earn at least two-thirds of median earnings.

Figure F

Immigrants may be overrepresented in some jobs and underrepresented in others, but the difference between the U.S.- and foreign-born shares is rarely as dramatic as is often assumed. Immigrants are strongly represented in some high-wage jobs and play a significant role in many middle-wage jobs. For example, 24.6% of dental, nursing, and health aides are immigrants, as are 37.7% of computer software developers—well above immigrants’ 18.6% share of the labor force.8 While immigrants are overrepresented in low-wage occupations, immigrants are a significant part of the top, middle, and bottom of the economic ladder in the workforce.

A final reason the wage impact of immigration is smaller than one might expect is that recent immigrants are very geographically mobile. Basso and Peri (2020) show that newly arrived immigrants with less than ten years in the United States are more likely to move across states and different labor markets than U.S.-born workers. When employment demand in a local labor market is declining (or increasing), recently arrived immigrants are much more likely than native-born workers to move away from (or into) that locality. Because of this exit option, employers may have somewhat less leverage over immigrants than they would otherwise. Recently arrived immigrants therefore reduce the monopsony and wage-setting power employers have over immigrants and also U.S.-born workers who are viewed as substitutes.

At the same time, research has shown that some incumbent foreign-born workers are more likely than U.S.-born workers to be substituted by employers for newly arrived immigrants. As a result, the wage effects of increased immigration on previous immigrants may be more negative. Ottaviano and Peri (2012) found that while immigration had small positive effects on the wages of U.S.-born workers, it had negative effects on the wages of foreign-born workers. Policies should thus be implemented to ensure that wages are not degraded for immigrants who have already resided in the United States for many years.

Immigration, taxes, and public spending

The preponderance of the research and evidence shows that immigration does not create a fiscal burden. Differences between the U.S.-born and immigrant populations in the taxes they pay and the public services and benefits they receive improve the fiscal position of the federal government while, to a lesser extent, putting financial pressure on state and local governments. As detailed in the 2017 NASEM report and related research, the net effect is positive over the lifetimes of immigrants, their children, and grandchildren (NASEM 2017; Orrenius 2017).

The fact that immigration is a boon to the federal government’s fiscal balance but a strain on state and local governments’ balances can be addressed by increasing the federal share of jointly funded programs. Since the federal government already transfers nearly a trillion dollars annually to state and local governments through numerous grant programs, these transfers could simply be made more generous. A perhaps bigger challenge is that the short-term fiscal impact of immigration can be negative even if the long-term impact is positive.

Relative to U.S.-born residents at equivalent income levels, immigrants put less strain on other taxpayers because they have high employment rates and do not qualify for many public services and benefits. Further, immigrants have little or no impact on the cost of national defense, foreign aid, interest on the national debt, and similar expenses known as public goods. However, if an equal share of these costs is assigned to immigrants, the NASEM report found that they and their children and grandchildren will pay less in taxes than they will receive in services and transfer payments over their lifetimes, as is also true of U.S.-born residents (keeping in mind that the United States consistently runs a budget deficit in the consolidated government sector).

This does not mean that immigration is costly to U.S.-born residents, however. To the contrary, immigrants will pay more in taxes than the additional public spending they generate. That is, immigrants’ net contribution is enough to reduce the taxes paid by others—just not enough to cover a proportionate share of public goods like national defense and interest on the debt (NASEM 2017; Orrenius 2017).

Most immigrants to the United States arrive as adults, and some 30–40% later return to their countries of origin, often following a drop in earnings (NASEM 2017; Migration Policy Institute 2022; Akee and Jones 2024). As a result of these patterns of migration and return migration, much of the cost of immigrants’ upbringing and education, and some of the cost of supporting them in disability or old age, are borne by their families and the governments in their countries of origin. More of their time spent in the United States, meanwhile, is during prime working-age years when people tend to pay more in taxes than they receive in public services and benefits.

Immigrants have somewhat larger families than U.S.-born residents, though not large enough to stem a decline in the under-20 U.S. population in recent years (SSA 2023). In 2017, immigrant women were estimated to have 2.18 children over their lifetimes, versus 1.76 for U.S.-born woman (Peri 2020). Given the low U.S. birth rate, immigration itself and larger immigrant families were the only factors preventing the U.S. population from shrinking.

As discussed elsewhere in this report, immigrants are more likely than U.S.-born residents to lack high school degrees, but also more likely to have advanced degrees and to work in STEM fields (“STEM” refers to science, technology, engineering, and mathematics). Research shows that immigrants tend to be highly innovative and entrepreneurial, and their presence boosts productivity growth. For example, Hunt (2011) found that immigrants were roughly twice as likely as U.S.-born residents to be granted patents, including patents that are licensed or commercialized, and Peri (2012) found that productivity is higher in areas that attract immigrants based on historical settlement patterns and distance from the Mexican border (factors that are used as statistical instruments to differentiate between higher productivity attributable to immigrants versus immigrants being drawn to higher-productivity areas).

While lifecycle patterns tend to benefit countries attracting immigrants, economic migration of less-educated immigrants from poorer to richer countries can increase spending on means-tested benefits. This may be less true in the United States than in many other destination countries, however, because the United States has a less generous safety net than most wealthy countries and because many immigrants to this country are ineligible for, or dissuaded from, accessing benefits (Lacarte, Gelatt, and Podplesky 2024). Moreover, people who take on the costs and risks of migration, even if they hail from countries with lower educational attainment, tend to have a high capacity for gainful employment, often supporting less healthy or skilled family members back home (Feliciano 2020).

Immigration of working-age adults slows the rise in the age dependency ratio—the size of the population 65 and older relative to that of the prime working-age population. Immigrants’ relatively high birth rate, conversely, slows the decline in the youth dependency ratio—the under-20 population relative to the working-age population. The net effect on the working-age share of the U.S. population is positive, though the impact on public finances also depends on the relative cost of different programs.

Generally, faster population growth will tend to increase the tax rates needed to fund education and other programs that primarily benefit young people while reducing the tax rates needed to fund Social Security, Medicare, and other programs that primarily benefit older people. In addition to the relative cost of these different programs, timing matters. As a result of the decline in birth rates that followed the post-World War II baby boom, the United States, like many countries, has an aging population, such that funding Social Security and Medicare is a bigger challenge than funding education. This demographic imbalance is even more acute in other countries, notably Japan, which admits too few immigrants to allow a shrinking workforce to support its aging population.

Age, family size, and earnings potential are not the only factors affecting the net impact of immigration on public finances. For example, recent research indicates that unauthorized immigrants pay just under $60 billion per year in federal taxes and over $37 billion in state and local taxes (Davis, Guzman, and Sifre 2024). Yet many benefits, notably Medicare, are not accessible if an immigrant returns to their home country even if they are naturalized U.S. citizens or were legal residents who had paid into the program and would have been eligible for benefits if they had remained in the United States. Other benefits, such as Social Security, are portable but are not available to unauthorized workers. Though some means-tested benefits are currently available to unauthorized immigrants—a few states extend health and other benefits to low-income families regardless of legal status—take-up by immigrants is low since many fear it could jeopardize their ability to remain in the country or apply for citizenship (KFF 2023).

Millions of unauthorized immigrant workers contribute to Social Security using numbers that are not their own. This reduces Social Security’s projected shortfall but does so at the expense of a disadvantaged population. Immigration reform that allows immigrants to fully participate in society would help future immigrants receive the benefits to which they contribute. It could also potentially help some immigrants access benefits that can be linked to past contributions through Individual Taxpayer Identification Numbers (ITINs).

As discussed elsewhere in this report, immigration reform that includes a broad regularization for those who lack an immigration status would increase earnings, reported earnings, and the taxes paid on these earnings, including contributions to social insurance programs such as Social Security and Medicare. However, the net impact on these contributory programs as well as some programs funded by general revenues, such as Medicaid, could be negative in the short run if immigrants who paid into these programs gain access to benefits. Factoring in both increased revenues and increased costs, however, the Congressional Budget Office estimated in 2013 that legislation that would have significantly increased the number of immigrants living and working legally in the United States would have decreased federal budget deficits by nearly $200 billion over a 10-year period (Elmendorf 2013).

In the long run, society generally gains when workers have full legal rights and protections and are able to achieve their full potential. However, there is always the potential that a large influx of new migrants or immigrants earning low wages, if they were eligible for most government benefits, could tilt the balance toward a negative fiscal impact in the short run. This should not be the only consideration, however, in decisions about whether to welcome or extend government benefits to vulnerable immigrants, just as humanitarian policies should not be expected to pay for themselves. It is worth noting, in any case, that even in the case of refugees and asylees who tend to have low educational attainment and are eligible for the same government services and benefits as U.S. citizens, a recent report found that their fiscal impact is positive in the long run (Ghertner, Macartney, and Dost 2024).

Studies that find negative fiscal impacts from immigration of lower-wage workers typically ignore dynamic effects on prices, productivity, and profits that improve U.S. residents’ living standards. Correcting for one of these omissions, a study accounted for increased tax revenue from higher profits attributable to immigration and found that the net fiscal impact of immigrants without college degrees changed from negative to positive when this revenue was taken into account (Clemens 2022).

Immigrants’ positive fiscal impact reflects their strong motivation and ability to improve their lives. Uprooting one’s life to travel to a new country to live and work is costly and risky, so people with a higher-than-average earning potential are more likely to emigrate, even if their formal education is limited (Feliciano 2020). As a result, after an initial adjustment period, immigrants tend to have high employment rates compared with the general population. They also tend to be more geographically mobile in response to economic conditions within the United States, boosting productivity growth by better matching workers and jobs (Basso and Peri 2020).

The success of immigrants extends to their families and can have spillover effects on the general population. The children of immigrants, most born in the United States, are more likely to have college degrees and are less likely to be poor than other Americans (Pew 2013). The presence of foreign-born and second-generation students has a positive effect on the academic achievement of other students, especially those from disadvantaged backgrounds (Figlio et al. 2024).

Immigration and housing affordability

One of the most pressing issues regarding immigration and housing in the current moment is providing adequate and humane shelter for the significant number of migrants who have entered the United States in recent years—many of whom are applicants for asylum who are awaiting a hearing. These migrants often have steep barriers to finding employment or other means of earning income, and they have had to rely on already inadequate systems to help the unhoused population in the United States.

In the shorter term, there are a range of stopgap and ameliorative measures that could be taken to provide humane housing options for recent arrivals. Solf, Guerrero, and Sherzad (2024) outline the scope of the problem and offer some short-term solutions, and a report by Eikenberry and Obser (2023) for the Women’s Refugee Commission provides an in-depth discussion about the key challenges and offers best practices for managing and housing large numbers of new arrivals at the federal, state, and local levels. 

In the longer run, the larger issue of homelessness in the United States would be greatly alleviated if measures that broadly reduced the cost of rent and homeownership were implemented. Given existing shelter capacity for the unhoused population, policies that increased housing affordability in the long run would also create more slack that could help absorb temporary surges in demand for short-term shelter. 

Further, the issue of housing affordability is not just an issue of people becoming unhoused; it has become a prime concern for working families up and down the income scale in the United States. Since the mid-1990s, housing cost inflation has outpaced overall price inflation significantly, particularly in a subset of major cities that provide promising employment opportunities.

The root cause of the housing affordability crisis is simply that housing supply has not kept up with rising demand, especially in areas experiencing strong economic and population growth. Essentially, new housing supply is not responsive enough to increased demand, so demand surges mostly are resolved with higher prices rather than greater housing output.9

This unresponsiveness of housing supply to demand surges means that any demand change can cause distress in local housing markets. For example, during the pandemic, millions of people realized they would be able to work from home (at least partially) for an extended period of time. This led to a strong change in preferences regarding what they wanted from a home. More space to accommodate home offices was desired, while the benefits of a short commute eroded. These changing preferences led to a surge of population away from city centers and into surrounding suburbs, and, to a lesser extent to increased intercity movements. Given the unresponsiveness of housing supply generally, this sharp change in demand patterns led to a historically large increase in housing costs—even in years when immigration from abroad dropped sharply.10

The constraints on housing supply are varied, but a major factor is restrictive land-use policy, generally set by local governments. The policy agenda to alleviate these constraints is multifaceted and beyond the scope of this paper but suffice to say that such a policy agenda would provide huge relief to U.S.-born residents if it was enacted  regardless of the level of immigration flows.11 As we noted before, housing demand shocks can (and do) happen constantly, even during times of low immigration flows (like during 2020 and 2021), and they lead to sharp affordability problems.

It is certainly true that given our dysfunctional housing supply side in the United States, any source of housing demand will put upward pressure on housing costs. Both long-term immigrants and new migrants—like U.S.-born residents—need housing and hence, higher levels of immigration will boost housing demand. Under our current housing supply-constrained regime, this does put some upward pressure on housing costs. Saiz (2007) and Mussa, Nwaogu, and Pozo (2017) find that an increase in immigration equal to 1% of the existing population leads to an increase of roughly 1% in housing costs. However, as we showed earlier, increased immigration flows in recent decades in the United States have largely not even made up for declining growth in the U.S.-born population. If our housing supply regime in the United States cannot even provide affordable housing for a population whose overall growth is steadily decelerating, it seems there is clearly a more important issue to address.

Another key issue is the difference between the cost of housing services and the price of homes. Generally, economists looking to measure inflation or the burden of housing costs use measures of housing rents. These rents are seen as the consumption value of housing services. Home prices bundle the cost of housing services as a consumption good with the cost of purchasing an investment good (a home is a valuable asset). In a country like the United States in which most families live in a home that they own, this raises some measurement challenges. But aside from this, it also introduces some distributional conflict regarding housing costs. For a family that must rent a home, rising rents are a pure cost burden that lowers consumption possibilities on nonhousing items. For a family that owns a home, rising rents are an implicit income that drives up the value of their assets and hence their net worth. Additionally, because most homeowners either own their home outright or have fixed-rate mortgages that pin down their monthly payment, the only significant effect of rising rents they face is a rising value of their home. In short, anything—including higher levels of immigration—that raises rental costs for housing also raises the value of homeowners’ wealth. Given that homeownership rates are substantially higher among U.S.-born residents than foreign-born households, rising rents stemming from higher immigration flows are a direct transfer from immigrant households to native households.

There is one final important intersection between immigration and housing: Immigrants are exceedingly overrepresented in the construction workforce, and particularly so in residential construction (see Bivens 2014). They are a key source of skilled labor for this sector. Policy changes that sharply slowed (or reversed) immigration flows could quickly reduce the labor supply in construction, restrict housing output, and raise the cost of building new homes. Howard, Wang, and Zhang (2024) examined the staggered rollout of a national immigration enforcement increase to see if it affected costs and output in residential construction. They found that counties that saw greater immigration enforcement effort saw reductions in the residential construction workforce, fewer homes built, and higher prices, all consistent with immigration enforcement suppressing labor supply in this sector. 

Of course, one could argue the same thing about any policy change that raised wages in construction—and part of our policy recommendations includes measures (like providing a path to citizenship) that would raise wages for immigrants in construction. However, the rise in wages stemming from boosting immigrants’ bargaining power vis-à-vis employers (by regularizing their legal status) would largely come from a pure redistribution from business income. Employers’ power in labor markets—particularly relative to unauthorized immigrant workers—means they can impose a “markdown” on wages and earn supernormal profits.12 Curtailing this power will overwhelmingly show up in lower supernormal profits and not in higher construction prices. Further, evidence has shown that the higher wages that accompany normalizing immigrants’ legal status are often “financed” largely through higher productivity. With more secure, permanent, and lawful immigration status, immigrants are incentivized to invest in productivity-enhancing training and education and are freer to enter occupations with higher productivity that require more stringent scrutiny of their immigration status. 

The direct effect of reduced labor supply, on the other hand, is to immediately lower construction output, and this would almost surely raise home prices.

All in all, it is mechanically true that any population growth puts stress on the nation’s dysfunctional system of housing supply. Recent decades have seen very little change in overall population growth, so the inability of the nation’s housing supply sector to accommodate this (slow and unchanged) growth without creating affordability problems is glaring. It is this dysfunctional supply side of the housing market, not anything—including immigration—on the demand side that should be the focus of policymakers. Further, the overall effect of immigration on U.S. housing should take into account the effects of immigration flows on the housing wealth of U.S.-born residents and on the construction industry’s ability to produce new homes at reasonable costs. Tallying these up leads to very little reason to think that increased immigration flows are a first-order challenge in U.S. housing policy. 

Immigration and long-run growth

The size and growth rate of aggregate GDP will obviously be directly affected by immigration in coming decades. But when economists talk about growth, they mostly are referring to growth in per capita GDP or even growth in productivity—the amount of output generated in an average hour of work in the economy. Productivity growth is the basis of rising living standards—the level of productivity (and not the level of aggregate GDP) is what determines if a country is rich or not. Bangladesh, for example, has an aggregate GDP roughly 4 times larger than Norway, yet it is Norway’s tenfold advantage in GDP per capita that makes it rich relative to Bangladesh.

Accordingly, when economists assess the effect of any influence—including immigration—on economic growth, they are mostly talking about the effect on productivity growth. It is true that if immigrants are younger than U.S.-born residents, that an influx of immigrants can boost per capita GDP simply by virtue of having higher employment rates. But for most of the following section, we will abstract from that when discussing the literature on immigration and growth (the greater employment rates of immigrants, however, are of first-order importance in their effect on the nation’s fiscal balances, as we discuss in a later section).

Theories of economic growth have enough variety and complexity that it is nearly impossible to make firm predictions about the effect of immigration on this long-run growth, but we will note just a few things in this section.

First, in all growth models that posit a negative relationship between growth in per capita income and population growth (including immigration), the influence of faster population growth that slows per capita income growth is its effect in suppressing growth in the capital-to-labor ratio. But the evidence over business cycles shows little relationship between slower growth of the capital-to-labor ratio and immigration flows in the U.S. data. The scatterplot in Figure G shows the change in the overall capital-to-labor ratio in the U.S. economy over various decades, along with the change in the immigrant share of the population. If the worries about immigration and growth are to be sustained, there should be a clear negative relationship: A higher immigrant share should be associated with a smaller increase in the capital-to-labor ratio. But there is no obvious relationship (if anything, it appears to be slightly positive). This is not dispositive evidence, obviously, but it does highlight once again that rising shares of immigrant workers in the U.S. economy are mostly matched by declining growth rates of the native-born population and labor force.

Figure G

Further, richer models of economic growth consider other determinants of growth besides just the rate of physical capital accumulation. Many models highlight that human capital (the skills and training of the workforce) not only matters for growth but also generates externalities (positive economic returns that are not fully captured by the workers creating them). Given this, immigration that increases human capital in the destination country might actually boost per capita income growth.

A related (but not identical) idea is that today’s economic growth depends on the existing stock of ideas (including ideas from decades or even centuries ago). If the total stock of ideas is related strongly to the simple size of the population, then rising population can be an aid to growth rather than a drag. Because ideas are often fluid across national borders, the link between a larger population and faster growth might hold more tightly at the global rather than the national level, but if any parts of idea formation are nationally “sticky,” then it might hold at the national level as well (and patents and copyrights and other forms of intellectual property protection probably do make ideas’ economic benefits “sticky” in the country in which they are formed, for good or for ill).

A recent paper from Bernstein et al. (2022) highlights the disproportionate success of immigrants in patenting new inventions from the period 1990–2016. Immigrants constituted 16% of inventors applying for patents in the United States, but accounted for 23% of the total patents, and 25% of the most cited patents (a proxy for the importance of the innovation).

Sequeira, Nunn, and Qian (2017) provide examples of how past immigration flows into the United States brought ideas that surely contributed strongly to growth:

One example of such an innovation is the suspension bridge, which was pioneered by John A. Roebling, a German-born and trained civil engineer, who built numerous suspension bridges, including the Niagara Fall Suspension Bridge and the Brooklyn Bridge (Faust, 1916, p. 10). Other notable engineers include… John F. O’Rourke, an Irish engineer, who built seven of the tunnels under the East and Hudson Rivers, and six of the tunnels of the New York subway systems (Wittke, 1939, pp. 389–390). Another example is Alexander Graham Bell …[who] developed an acoustic telegraph…. Other notable inventors include David Thomas (Welsh), who invented the hot blast furnace; John Ericsson (Swedish), who invented the ironclad ship and the screw propeller; Conrad Hubert (Russian), who invented the flashlight; and Ottmar Mergenthaler (German), who invented the linotype machine (Kennedy, 1964, pp. 33–34). Immigrants also made important contributions to the educational system of the United States. For example, the concept of kindergarten, which has been shown to have had important economic effects, was brought to the United States by German immigrant Friederich Fröbel (Paz, 2015, Ager, Cinnirella and Jensen, 2016). Recent research by Paz (2015) finds that the presence of kindergartens during the kindergarten movement (1890–1910) resulted in an average of 0.6 additional years of total schooling by adulthood and six percent higher income…The State University system… was modeled after the Prussian… system… (Faust, 1916, pp. 10–11). 

These crosscutting theoretical effects of immigration on growth are likely why the empirical estimates of immigration on growth yield mostly neutral results. For example, Borjas (2019) uses cross-state estimates of income growth and immigration flows and finds largely neutral results for the causal effect of immigration flows on per capita income growth. Kane and Rutledge (2018) also use cross-state data to assess the link between immigration flows and growth. In the raw data, there is an unambiguous positive correlation between immigration flows and state growth, but some of this is due to immigrants settling in states with strong economies. Using techniques to isolate the causal effect of immigration flows on per capita GDP growth, they find modestly negative growth effects, but no effect on levels, which they interpret as indicating that the negative growth effects are transitory. Using historical data, Sequeira, Nunn, and Qian (2017) find that past waves of immigration in the United States had significantly positive short- and long-run causal effects on economic growth.

Finally, it is worth noting again that the possible win-win economic effects of immigration are often squandered by bad immigration policies and a system that doesn’t work well enough for workers. It is very likely that the returns to innovation and human capital that would accrue to many immigrants within the United States are artificially suppressed because the immigrant workers would not be able to claim the same benefits from innovation that U.S.-born workers might. If a U.S.-born worker has an idea for a great invention, they can start their own company and retain full control over the resulting patent. Many highly skilled and educated temporary migrants must remain attached to a specific employer as a condition of residence and employment in the United States, and this means that they may see their employer able to claim many of the benefits of their innovation instead of getting it themselves.

The artificially created labor market monopsony facing many temporary migrant workers in the United States almost surely stifles many potential innovations. Take a couple of recent examples: One of the key inventors of the mRNA vaccines was Katalin Karikó, a Hungarian citizen working in the United States on an academic visa. When Karikó tried to change jobs and move to another lab with better working conditions, her academic adviser threatened to have her deported. The resulting legal entanglements led to the offer from the other lab being withdrawn (Shrikant 2023). Another example is Sandeep Maganti whose situation is detailed in a recent Bloomberg investigative news report on the H-1B visa program. Maganti is a software engineer who, while on a student visa, created a business that grew “into a million-dollar company that employed six people” (Fan et al. 2024). U.S. “visa rules wouldn’t allow Maganti to sponsor himself” for an H-1B visa so that he could remain and run his company. Without a viable path to a temporary H-1B visa—a visa that would require Maganti to be sponsored by an employer and become an employee—he thus “had to sell his stake and stop working at his own company” (Fan et al. 2024).

Immigration pathways and statuses in the United States

While the previous sections of this paper have focused on the migrant and immigrant population and what existing research says about their impact on the economy, wages, and housing, it has so far only briefly mentioned how people arrive to the United States from abroad, and how those pathways and the resulting immigration statuses—or lack thereof—impact the economic outcomes of immigrants themselves and labor standards for all workers writ large. In order to provide some background, this section summarizes the broad immigration statuses for migrants and immigrants in the United States, and the different rights they have depending on their particular pathway and status. The following section will focus on why the differences in immigration status matter to the economy and workplaces across the country.

Pathways into the United States and immigration statuses

There are multiple pathways that persons abroad take to arrive in the United States. The following is a brief summary:

Green cards: One of the available lawful pathways includes adjusting to lawful permanent resident (LPR) status—also commonly referred to as obtaining a permanent immigrant visa or “green card”—which can be through the family-based (FB) or employment-based (EB) preference categories, through a humanitarian pathway such as a refugee resettlement program or by qualifying as an asylee, through the Diversity Visa (DV) lottery, or through one of the lesser known narrower categories, which account for a small share of total green cards. 

The total number of green cards granted averaged just over one million per year between 2003 and 2022 (1,021,966). One thing to keep in mind with respect to this total number is that not all green cards granted go to newly arriving immigrants from abroad; in most years, half to two-thirds of green card recipients were already present in the United States in some other status and adjusted to lawful permanent resident status.13 Persons with green cards are eligible to apply for citizenship after five years, or three years if they have been married to a U.S. citizen. In terms of employment, green card holders may work for nearly any employer, except for positions that require citizenship, and may change jobs or employers without requiring authorization from the U.S. government.

Temporary, nonimmigrant visas: The other major pathway into the United States is as a temporary visitor, student, trainee, diplomat, exchange visitor, or employee acquiring a “nonimmigrant” visa or status.14 Nonimmigrant visas and statuses are temporary, meaning that the foreign-born person to whom the visa is issued must depart the United States after the visa expires unless they adjust to LPR status by acquiring either one of the green cards described or another valid nonimmigrant status. Many nonimmigrant visa classifications authorize the visa or status holder—sometimes referred to as the visa beneficiary—to be employed in the United States. Employed nonimmigrants are also often referred to as temporary foreign workers, temporary migrant workers, or guestworkers, but no one definitive term has been agreed upon (for the purposes of this report, we refer to them as temporary migrant workers). Most temporary migrant workers are only permitted to work for one employer, the employer that sponsored their visa. In 2023, nearly 1.8 million new temporary work visas were issued to temporary migrant workers and their accompanying family members.15 The total number of temporary migrant workers in the United States who are employed in a given year is estimated to be just over 2 million (because some temporary visa statuses can last for more than one year) (Costa 2021).

Humanitarian pathways (refugees, asylees, and asylum seekers): As noted above regarding green cards, some persons obtain green cards through the U.S. refugee resettlement program or after being granted asylum (a person granted asylum is referred to as an asylee). The refugee pathway comes from the United Nations Refugee Convention of 1951, which defines a refugee as someone fleeing his or her country because of persecution or “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside of the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” In the United States, the Immigration and Nationality Act (INA), as amended by the Refugee Act of 1980, implements the Refugee Convention and its 1967 Protocol into U.S. law, and authorizes and governs the admission and resettlement of refugees into the United States.16 The number of refugees admitted to the United States in 2023 was just over 60,000 (Migration Policy Institute 2024). Refugees are permitted to work for any employer, just like green cards holders (except for positions that require U.S. citizenship).

Asylum is another form of humanitarian legal protection for persons who have been forcibly displaced and fear harm and persecution, similar to the protections available to those who qualify as refugees, although under U.S. law, there is a separate process for persons who apply for asylum (i.e., asylum seekers or asylum applicants) and those applying for refugee status. Like refugees, asylum seekers must meet the definition of a refugee; however, a major difference between applying for refugee status or asylum is that to apply for asylum, the applicant must already be in the United States or apply for asylum at an official U.S. port of entry, rather than applying from abroad as refugees do.17 Successful asylum applicants who become asylees are eligible and on the path to a green card. However, processing of asylum claims through the relevant government agency or in immigration court often takes years before they are adjudicated.

Asylum may also be claimed as a defense to deportation for persons who are detained by immigration authorities. During that time, asylum applicants (aka asylum seekers) do not have a formal immigration status but are authorized to remain in the United States while their claim is adjudicated.

Asylum seekers are authorized to work in the United States, but they are subject to applicable rules and wait times. They must first be issued an Employment Authorization Document (EAD) from U.S. Citizenship and Immigration Services (USCIS), but may only file for an EAD 150 days after they have applied for asylum, and then become eligible to receive an EAD once their asylum application has been pending for a total of 180 days. There were an estimated 1.5 million asylum seekers employed in the United States in 2023.18

Irregular migration: The other pathway involves migrants who are present in the United States but who do not have an authorized immigration status; such individuals are sometimes referred to as unauthorized, undocumented, or irregular migrants (being in an irregular status), and sometimes (derogatorily) called illegal migrants or illegal immigrants. Unauthorized migrants either entered into the United States without inspection by the appropriate authorities—often referred to as entering without inspection (EWI) in government documents and data—and may have done so in a clandestine manner. Other unauthorized migrants may have originally entered the United States lawfully with a nonimmigrant visa or through the Visa Waiver Program and after an inspection by government authorities, but then lost their temporary immigration status. The loss of status may have occurred because of a violation that led to the revocation of their visa or status or the simple expiration of a nonimmigrant visa that was temporarily valid for a set time, usually a period of authorized travel, employment, or study.

There are a few existing estimates on the number of persons in the United States who lack an immigration status, the most recent of which estimate the population at between 11 and 11.3 million as of 2022.19 The vast majority of the unauthorized migrant population is settled, with 79% being long-standing residents who arrived in the United States in 2010 or earlier (Baker and Warren 2024). Unauthorized migrants are not authorized to be employed in the United States, but an estimated 8.3 million were employed in the U.S. labor force in 2022, accounting for just under 5% of the total U.S. labor force (Passel and Krogstad 2024).

Precarious immigration statuses: There are a few types of temporary protections or quasi-statuses, which are not technically immigration statuses and which do not directly lead to any form of permanent immigration status. For example, while unauthorized immigrants lack a formal immigration status, some may nevertheless be in an authorized period of stay in the United States in which they are temporarily “lawfully present,” which can occur if they have qualified for some sort of temporary immigration relief like deferred action, humanitarian parole, parole-in-place, or Temporary Protected Status (TPS).

Because of their temporary nature, we refer to them as precarious statuses and other analysts like the Migration Policy Institute have referred to them as “twilight,” “liminal,” or “limbo” statuses.20 Persons may either enter the United States with one of these precarious protections already in place—for example if they qualified for the parole program for Cuba, Haiti, Venezuela, and Nicaragua—or they may have entered without inspection and later qualified for TPS, deferred action, or parole-in-place (a form of parole granted to persons who are already in the United States). Persons with these precarious statuses are usually eligible to obtain an Employment Authorization Document (EAD), also known as a work permit, which allows them to work lawfully. There were an estimated 2.8 million persons in precarious statuses as of early 2024.21

The U.S. foreign-born population by immigration status

The pathways described above, and the resulting statuses, are generally categorized into four major categories of immigration status for immigrants (or lack thereof): Either immigrants have obtained lawful permanent residence (having a green card), or they have naturalized, meaning they have become U.S. citizens, or they have a temporary lawful nonimmigrant status, or they lack a lawful immigration status. For the purpose of population estimates—in part because of data limitations—the migrants who have qualified for some sort of precarious temporary immigration relief like deferred action, parole, or TPS, or who are pursuing an asylum claim, are counted as unauthorized migrants or immigrants, even though they technically have a form of authorized stay.22

In terms of the shares of persons in these statuses, according to an analysis done by the Pew Research Center (represented in Figure H), as of 2022, roughly half of all immigrants (49%) were naturalized U.S. citizens, one-quarter (24%) were lawful permanent residents, 4% were temporary lawful residents, and 23% were unauthorized immigrants (lacking an immigration status or having a precarious form of temporary protection) (Passel and Krogstad 2024).

Figure H

The impact of immigration status on wages and workplace rights

All persons in the United States have—at least on paper—basic labor and employment rights under U.S. law, which in theory, should protect them from lawbreaking employers. However, the extent to which those rights are able to be exercised, and the extent to which they are enforceable in practice, depends very much on immigration status because of the power that employers have over workers vis-à-vis that immigration status and because of how employers can exploit that power. This section briefly discusses the connection between immigration status and workplace rights and the existing research on the impact that immigration status can have on wages and labor standards.

Naturalized citizens

All persons who become naturalized citizens enjoy all of the same labor and employment rights as native-born U.S. citizens, including being able to work for any employer and in any position—(except they lack the ability to become elected to the office of president of the United States). Naturalized citizens are not subject to removal from the United States, which is a fear that many migrants and immigrants in other statuses have (unless they are found to have committed fraud during the naturalization process). Naturalized citizens also have access to the same social safety net benefits as native-born citizens and are the only group of immigrants that can vote in federal elections—meaning they are allowed to fully participate in political life.

These rights, benefits, and protections—in particular, not fearing deportation—result in better economic outcomes, including higher wages, than persons in other immigration statuses or compared with persons who lack an immigration status. Below are just a few examples of research showing the impact of naturalization on economic outcomes.

Peri and Zaiour (2021) modeled a number of scenarios for a legalization program that would provide status to unauthorized immigrants, to all or a subset of them, depending on certain characteristics. In their first scenario, which would consist of a legalization and path to a green card and citizenship for all unauthorized immigrants, they found that in the short run—meaning five years, in which unauthorized immigrants would have a lawful immigration status but would not yet become naturalized U.S. citizens—workers who were previously unauthorized would see a wage gain of 10%, amounting to $4,300 per year. Peri and Zaiour then assume that all those who gained an immigration status would become naturalized citizens after five years—and in the long run, meaning five to ten years—the newly naturalized immigrants would see an increase in their annual wages of 32.4%, amounting to an increase of $14,000 per year. They also found a positive wage impact beyond just the workers who naturalized, estimating that all other workers would see an annual increase in wages of 1.1%, or $700. Their estimate on the broader impact of a pathway to citizenship was that it would increase gross domestic product by up to $1.7 trillion over the next decade and create hundreds of thousands of new jobs.

Lynch and Oakford (2013) estimated the wage gains for both legalization as a first step and the additional wage gains that would follow after naturalization. They estimated first, the same increase in income that unauthorized immigrants saw from legalization after the Immigration Reform and Control Act (IRCA), as measured by the U.S. Department of Labor, of 15.1% after five years (see more discussion in the next section on green cards). They then calculate the effect of moving from legalization to citizenship, estimating an additional 10% increase in income after acquiring citizenship. In total, they estimate that “the full effect of granting legal status and citizenship to unauthorized immigrants is an income gain of 25.1%. Of this boost in income, about three-fifths comes from legalization and about two-fifths is attributable to transitioning from legal status to citizenship.”

Pastor and Scroggins (2012) also found that citizenship would boost individual earnings of workers by 8% to 11%, “leading to a potential $21–45 billion increase in cumulative earnings over ten years that will have ripple effects on the national economy.”

Shierholz (2010) observed a difference between foreign-born adults who had become naturalized citizens and those who had not become naturalized, in terms of both economic outcomes and poverty rates. Naturalized citizens in 2007 had a median annual family income that was very similar to that of native-born U.S. citizens, even earning slightly more than the native-born. But noncitizen immigrants had an annual median income that was 33.2% below that of naturalized citizen immigrants. In terms of poverty rates, they were much higher for noncitizen immigrant adults: In 2007, the poverty rate for noncitizen immigrants was 20.0%, more than twice the 9.2% rate for naturalized citizen immigrants and the 9.8% rate for native-born U.S. citizens. The poverty rate difference was starkest for Latinos, with the poverty rate for naturalized citizen Latinos being 4.3 percentage points lower than the poverty rate of Latino noncitizens.

Sumption and Flamm (2012) made very similar findings, showing that “naturalized citizens earn more than their noncitizen counterparts, are less likely to be unemployed, and are better represented in highly skilled jobs.” They further found that:

Most of the gap between citizens’ and noncitizens’ outcomes is explained by the fact that naturalized immigrants have higher levels of education, better language skills, and more work experience in the United States than noncitizens. Even after accounting for these differences, however, there is some evidence that the naturalized may earn a wage premium of at least 5 percent.

Green cards

All persons who obtain green cards—whether through the family-based, employment-based, humanitarian, or Diversity Visa pathways—enjoy nearly all of the same labor and employment rights as U.S. citizens, including being able to work for any employer and in any position except for those that explicitly require citizenship. For the most part, green card holders are not subject to removal from the United States, although unlike naturalized citizens, they can be removed if they commit certain crimes that make them deportable or if they are deemed to have abandoned their permanent resident status.

Under current federal law, green card holders must wait five years before using most public support and social insurance programs. Green card holders are not eligible to vote in federal elections, although some jurisdictions allow them to vote in local elections for positions like school boards and city council seats and to run for some local elected offices.

Being able to work lawfully without fearing deportation results in better economic outcomes for green card holders, including higher wages, relative to persons in other lawful immigration statuses or compared with persons who lack an immigration status. Below are just a few examples of research showing the impact of naturalization on economic outcomes. (Estimates of the economic benefits obtained by green card holders depend on their status before they obtained their green cards. The two types discussed here are persons who were previously on a temporary work visa and persons who previously lacked an immigration status.)

One example of research assessing the economic and workplace impact of having a green card compared with a temporary work visa comes from Mukhopadhyay and Oxborrow (2012), who looked at college-educated migrant workers on temporary visas. They found that “H-1B workers are paid less than native workers” and that the wage gain associated with obtaining an employment-based green card was $11,860 per year. The authors noted that their “result shows that the current process of acquiring a green card gives too much power to employers and hinders job mobility among highly skilled immigrants.”

Apgar (2015) reviewed Mexican Migration Project survey data and compared employment outcomes for Mexican males who were on temporary visas, unauthorized immigrants, and green card holders. Controlling for other factors, Apgar found that the hourly wages of temporary migrant workers were about 11% less than those of immigrants with green cards and that unauthorized immigrant workers earned about 13% less than immigrants with green cards.

There is extensive research on the impact of unauthorized immigrants who regularized their status by becoming eligible for green cards going as far back as the 1990s, including research on the effects of the 1986 legalization program implemented after enactment of IRCA, which was signed into law by President Ronald Reagan. This research is particularly relevant for measuring the impact of obtaining a green card because nearly all migrants legalized under IRCA were eligible to receive a green card after 18 months. The discussion here only offers a small sampling of the existing literature.

Smith, Kramer, and Singer (1996), in a report conducted for the U.S. Department of Labor (DOL), found that after four or five years, the real hourly wages of persons who had their immigration status regularized increased on average by 15.1% by 1992 (13.2% for men and 20.5% for women). Kossoudji and Cobb-Clark (2000) found that, according to the same data set, 38.8% of Mexican men had moved on to higher-paying occupations by 1992.23

Hinojosa-Ojeda (2010) summarizes other related research and notes that “[t]he findings of these researchers vary according to their economic models, but the results show uniformly positive results for IRCA beneficiaries,” including measured wage increases that occurred even after controlling for factors such as education and English proficiency, and broader changes in the economy that might have impacted wages more generally.24

Temporary work visas and temporary migrant workers

Although they are legally authorized to work, temporary migrant workers are among the most exploited laborers in the U.S. workforce because employer control of their visa status leaves many virtually powerless to defend and uphold their rights. The vast majority of temporary migrant workers do not have a path to permanent residence through their nonimmigrant visa, and under current federal law, are ineligible for most federally funded public benefits. 

The first major temporary migrant worker programs in the United States were the Bracero programs, which were negotiated as bilateral agreements between the United States and Mexico in 1917 and 1942 (Martin 2020). Since then, numerous cases of abuse and exploitation of migrant workers employed with temporary visas have come to light through the media, reports from advocates and labor unions, and government audits.25 Many of the abuses occur because of the structure of the visa programs, which have few rules and inadequate protections and oversight by federal or state labor standards authorities.

Temporary migrant workers have good reason to fear retaliation and deportation if they speak up about wage theft, workplace abuses, or other working conditions like substandard health and safety procedures on the job—not because they don’t have a valid immigration status, but because their visas are almost always tied to one employer that owns and controls their visa status. That visa status is what determines the worker’s right to remain in the country; if they lose their job, they lose their visa and become deportable (Bauer and Stewart 2013). That leaves them afraid to speak up and complain to their employer or government authorities if their wages are stolen or other workplace violations take place. This arrangement results in a form of indentured servitude.26 Further, employers can punish temporary migrant workers for speaking out by not rehiring them the following year or by telling recruiters in countries of origin that they shouldn’t be hired for other job opportunities in the United States (effectively blacklisting them).27

Although on paper, temporary migrant workers have labor and employment rights and access to remedies that are on par with those of U.S. workers—including immigrants who are green card holders and naturalized citizens—the specter of retaliation makes it understandably difficult for temporary migrant workers to hold lawbreaking employers accountable through complaints to their employers or to government agencies about illegal conditions like unpaid wages and substandard working conditions. Private lawsuits against employers who break the law are also an unrealistic avenue for enforcing rights for two reasons: First, most temporary migrant workers are not eligible for federally funded legal services under U.S. law, and second, those who have been fired are unlikely to have a valid immigration status permitting them to stay in the United States long enough to pursue their claims in court. Because of the conditions created by tying workers to a single employer through their visa status, temporary work visa programs have been dubbed by some as “close to slavery” or “the new American slavery,” and government auditors have noted that increased protections are needed for temporary migrant workers.28

It is also well established that many, if not most, temporary migrant workers pay hefty fees to obtain their temporary jobs in the United States (CDM 2013 and 2020). Those who are in debt after paying recruitment fees are anxious to earn enough to pay back what they owe and hopefully make a profit, exacerbating their situation and making them even more unlikely to speak up at work when things go wrong on the job.

When it comes to wages, there is abundant evidence that the laws and regulations governing major temporary work visa programs—such as H-2B and H-1B—permit employers to legally pay their temporary migrant workers much less than the local average wage for the jobs they fill.29 For example, in the H-1B program—which has a prevailing wage rule that is intended to protect local wage standards—60% of all H-1B jobs certified by the DOL in 2019 were certified at a wage that was below the local average wage for the specific occupation (Costa and Hira 2020). However, most work visa programs have no minimum or prevailing wage rules at all—and while employers are still required by law to pay temporary migrant workers at least the state or federal minimum wage, that’s often far less than the true market rate, or the local average wage, for the occupation in which they are employed.30 Evidence also exists of rampant and systematic wage theft committed against temporary migrant workers.31

Considering how the wage rules or lack thereof in these programs operate, and the situation workers are left in, perhaps it is no surprise that according to one study, there is evidence that temporary migrant workers in low-wage jobs earn approximately the same wages, on average, that unauthorized immigrant workers do for similar jobs, despite being in a technically lawful status (Apgar 2015). In other words, temporary migrant workers may have little financial incentive to work legally through visa programs since there is a small or zero wage premium to be gained for it—and, in fact, authorized temporary migrant workers can end up worse off economically than unauthorized workers because of the debts they incur through fees paid to recruiters, and the fact that many have no family or social networks to rely on. This can incentivize workers to migrate without authorization, rather than using available legal channels.

In essence, these visa programs give employers dangerous levels of monopsony power over workers—similar to company towns in which an employer has enormous leverage over workers because it is the only employer in town.32 A growing body of research, some of it focused on temporary work visa programs, has shown that even modest amounts of employer monopsony power are corrosive to workers’ ability to bargain for better wages.33 

Unauthorized immigrants

Unauthorized immigrants, who make up nearly 5% of the U.S. labor force, contribute to the economy in vital industries and pay billions in taxes and contributions to the social safety net (Davis, Guzman, and Sifre 2024; Fernández Campbell 2018). But these nearly eight million workers are not fully protected by U.S. labor and employment laws because they lack an immigration status. Unauthorized immigrants are also vulnerable to exploitation by employers because they are largely ineligible for federally funded public support and social insurance programs because of their immigration status (as discussed earlier in this report) (Lacarte, Gelatt, and Podplesky 2024). There are a few narrow exceptions to this rule, which allow immigrants to be eligible for certain benefits regardless of immigration status; those programs include emergency Medicaid (if otherwise ineligible for their state’s Medicaid program), programs that provide immunizations and/or treatment of communicable disease symptoms, and school breakfast and lunch programs.34 Under federal law, all children have equal access to public education at the elementary and secondary level regardless of their immigration status or the status of their parents. 

On paper, unauthorized immigrants have labor and employment rights and access to remedies that are on par with those of U.S. workers35—including immigrants who are green card holders and naturalized citizens—but the specter of retaliation makes it understandably difficult for unauthorized immigrants to hold lawbreaking employers accountable. These workers are often afraid to complain about unpaid wages and substandard working conditions because employers can retaliate against them by taking actions that can lead to their deportation. Thus, complaints to their employers or to government agencies about illegal conditions like unpaid wages and substandard working conditions seem like risky options—and perhaps with a low chance of success given how underresourced and understaffed labor standards enforcement agencies are (Costa 2022).

This imbalanced relationship gives employers extraordinary power to exploit and underpay these workers, also making it more difficult for other workers to improve their wages and working conditions. The exploitation described here is not theoretical. A landmark study and survey of 4,300 workers in three major cities by Bernhardt et al. (2009) found that 37.1% of unauthorized immigrant workers were victims of minimum wage violations, compared with 15.6% of U.S.-born citizens. In other words, unauthorized immigrants are more than twice as likely to be the victims of wage theft compared with U.S.-born citizens. Immigrants who had a lawful immigration status (labeled as “authorized immigrants” in the study) were also more likely to be the victims of wage theft, but the gap with U.S.-born citizens was significantly narrowed, compared with unauthorized immigrants: 21.3% of authorized immigrants were the victims of wage theft versus 15.6% of U.S.-born citizens. Bernhardt et al. (2009) also looked at overtime pay violations and found that an astounding 84.9% of unauthorized immigrants were not paid the overtime wages they worked for and were legally entitled to, compared with 67.2% of authorized immigrants and 68.2% of U.S.-born citizens. And finally, beyond just the higher rates of wage theft, research related to IRCA by Kossoudji and Cobb-Clark (2002) also examined the value of the wage penalty for being an unauthorized immigrant worker, estimating that it ranged from 14% to 24%.

Migrants with precarious temporary immigration protections and work permits

When it comes to migrants with precarious temporary immigration protections like TPS, parole, and deferred action, or who are going through the asylum application process, most of the migrants who qualify for those temporary protections are also eligible to receive an Employment Authorization Document, which is often referred to simply as a work permit or EAD. All foreign-born persons who are not authorized to work by virtue of being a naturalized citizen, green card holder, or temporary migrant worker must first obtain an EAD from U.S. Citizenship and Immigration Services (USCIS) within the U.S. Department of Homeland Security (DHS) before they can be authorized to work.36 To do so, they must belong to an eligible group, including, for example, certain foreign students, or the spouses of temporary migrant workers in certain visa programs, such as H-1B or J-1, or they may obtain an EAD by qualifying for one of the forms of administrative immigration relief, such as TPS, deferred action, Deferred Enforced Departure, humanitarian parole, or parole-in-place. EADs are also available for other categories of individuals such as asylum applicants (after a waiting period of six months), certain applicants for adjustment of status, asylees, and refugees who have not yet obtained green cards, as well as persons granted withholding of removal.37

For workers who lack a permanent or more durable immigration status, obtaining a temporary EAD can mean having enforceable workplace rights that the individual would otherwise not have. While all workers have some labor and workplace rights under U.S. law—regardless of immigration status, as discussed in other parts of this section in this report—enforcing them in practice becomes virtually impossible because of the threat of deportation, which prevents workers who lack an immigration status or an EAD from calling out lawbreaking employers and demanding that they comply with the law, or from reporting workplace violations to labor enforcement agencies. But having protection from deportation through temporary administrative immigration protections accompanied by an EAD means that, in practice, workers can report workplace violations to government officials without fear of retaliation that can lead to deportation. It also means that a migrant worker with an EAD can be employed by just about any employer and change jobs or employers, unlike temporary migrant workers who must be employed by the sponsor of their visa.

There are some examples of research showing the important economic contributions that hundreds of thousands of migrants with precarious statuses and EADs are able to make thanks to their temporary protections. For example, when the TPS population was approximately 354,000 in 2021, AIC (2023) estimated that “TPS holders contributed more than $2.2 billion in taxes, including almost $1 billion to state and local governments,” as well as “held $8 billion in spending power.” Another estimate by Moriarty (2024) found that TPS-eligible individuals “annually contribute some $31 billion in wages to the national GDP.” The total number of TPS holders in 2024 is now roughly 864,000; thus these totals are likely to be much higher now.

Research has also quantified some of the contributions made by persons who have qualified for Deferred Action for Childhood Arrivals (DACA). DACA was created by the Department of Homeland Security during the Obama administration in 2012, and recipients are eligible for protections from deportation and EADs that are valid for two years and renewable. More than 835,000 persons have benefitted from DACA, and more than 500,000 are currently still protected by DACA (President’s Alliance 2024). Svajlenka and Truong (2021) found that DACA recipient households “pay $6.2 billion in federal taxes and $3.3 billion in state and local taxes each year,” and “after taxes, these households hold $25.3 billion in spending power,” and that DACA recipient families “own 68,000 homes, making $760 million in mortgage payments and $2.5 billion in rental payments annually.”

When it comes to measuring the workplace impact and economic benefits of being issued an EAD for the workers themselves, there are limited examples, but three are worth citing here. One is an annual survey of DACA recipients that was conducted in 2024 for the ninth time. The most recent survey, conducted by Wong et al. (2024) and published by the Center for American Progress, showed that DACA has been an essential tool to improve the economic and educational outcomes of recipients. In terms of the impact that deferred action and an EAD have had on the employment of DACA recipients: 59.1% of respondents moved to a job with better pay; 47.3% moved to a job with better working conditions; 47.5% moved to a job that “better fits [their] education and training”; 49.6% moved to a job that “better fits [their] long-term career goals”; 57.3% moved to a job with health insurance or other benefits; and 19.6% of respondents obtained professional licenses.

Wong et al. also measured the impact of DACA and EADs on wages, finding that “[d]ata from the past nine years show that DACA has had a significant and positive effect on wages: Recipients’ average hourly wage more than doubled from $11.92 to $31.52 per hour—an increase of 164.4 percent—after receiving DACA.” These significant wage increases are no doubt a result of the labor and workplace rights and stability that DACA recipients gain from having an EAD.

Orrenius and Zavodny (2014) examined the wage and employment impact of another form of temporary immigration protection, that of TPS—which allows those who are eligible to also be granted an EAD. They looked specifically at migrants from El Salvador, finding that having TPS increased employment rates, and that less-educated Salvadoran men who were employed earned 13% more if they had TPS. They note that “As a whole, the results suggest that less-educated Salvadoran men who receive TPS are able to move into better jobs and become more selective about the jobs they hold, increasing their earnings but also their job search and unemployment incidence.”

One other analysis that assesses the wage impact of being issued an EAD comes from Kallick (2023), which looks specifically at asylum seekers in New York and nationwide. Relying on previous methodologies for measuring the impact of a lawful immigration status being granted to unauthorized immigrants, Kallick estimates that asylum seekers who are granted EADs increase their wages by 10%.

While the relative benefits of precarious and temporary immigration protections and EADs to migrant workers and the broader economy are clear, it is important to note here that the protections and EADs are only temporary and will end if renewals are not approved. This may occur either because the migrant no longer qualifies or because the program that authorized them has ended or not been renewed (for example if DHS decides not to renew a TPS designation or if DACA or another program is ended by DHS or found to be unlawful according to a federal court ruling). Since migrants with precarious immigration protections and EADs do not have a direct path to a green card, they may never obtain one unless Congress passes reforms to provide them with such a path—keeping them in a precarious status indefinitely until there is a policy change or their protections are not renewed.

In fact, if we include asylum seekers with EADs, there are approximately 4.3 million migrants who have protections through a precarious immigration status as of early 2024.38 But more than half are in danger of losing their protections and EADs if the current U.S. president or a future president decides to end any or all of the administrative immigration relief programs or if a court rules them invalid. Thus, millions who have been issued temporary protections and an EAD could potentially lose the workplace rights and protections that a work permit provides, leaving them vulnerable to exploitation by employers. In the case of asylum seekers, many can and will lose their ability to remain lawfully in the United States along with their work permits, depending on how their case is adjudicated in immigration court or by USCIS.

Immigration enforcement and the impact of inadequate resources for labor standards enforcement

The inability of both unauthorized immigrants and temporary migrant workers to hold employers accountable through regular channels, as discussed in this report, is exacerbated by the current immigration enforcement regime, which prioritizes removing unauthorized immigrants, detaining migrants, and detecting persons who attempt to enter the United States without authorization. This section briefly discusses the U.S. government’s lopsided enforcement priorities, the resulting challenges faced by labor standards enforcement agencies, and the impact on all workers.

Labor standards enforcement agencies are underfunded and short-staffed

In order to carry out its immigration enforcement priorities, as Figure I shows, U.S. immigration enforcement agencies received $30.2 billion from Congress in fiscal year 2023. All U.S. labor standards enforcement agencies that protect workers, on the other hand, only received $2.2 billion (also Figure I). That gap between the amounts appropriated for immigration enforcement as compared with labor standards enforcement means that immigration enforcement agencies are now funded at a rate that is nearly 14 times higher than the budgets of all federal labor standards enforcement agencies combined. This is up from 12 times as much in 2021—and when it comes to staffing, immigration enforcement agencies had eight times as many staff as labor standards enforcement agencies in 2021 (Costa 2022). The ultimate result of these disparities is to increase the fear that unauthorized immigrants already have when considering whether to report workplace violations, thereby making it even less likely that labor standards enforcement agencies will know about employer lawbreaking and be able to adequately respond.

Figure I

Hinojosa-Ojeda (2010) provides a useful summary of a 2008 report from the Atlanta Federal Reserve (Brown, Hotchkiss, and Quispe-Agnoli 2008) that examined the negative impact that the current immigration enforcement regime has on low-wage labor markets:

The enhanced [immigration] enforcement regime moves unauthorized workers further underground, lowering their pay, and ironically, creating a greater demand for unauthorized workers. A 2008 report from the Atlanta Federal Reserve analyzes how this vicious cycle is activated and expands as firms find themselves forced to compete for the supply of cheaper, unauthorized labor. When a firm cuts costs by hiring unauthorized workers for lower wages, its competitors become more likely to hire unauthorized workers for lower wage, as well, in order to benefit from the same cost savings.

This impact of escalating immigration enforcement, coupled with a lack of funds for labor standards enforcement, leaves workers vulnerable and largely unprotected from employer lawbreaking. There are some clear examples in particular industries in which enforcement is inadequate, but violations are common, for example, in agriculture, as we discuss in the next subsection—in which more than half of the workforce is comprised of unauthorized immigrants and temporary migrant workers (Costa and Martin 2023).

First, some background is appropriate regarding how one of the main federal worker protection agencies, the Wage and Hour Division (WHD), part of DOL, has been impacted by inadequate staffing and funding. WHD is responsible for enforcing provisions of several federal laws related to minimum wage, overtime pay, child labor, federal contract workers, work visa programs, migrant and seasonal agricultural workers, family and medical leave, and more. Yet, despite this broad portfolio and the 167 million workers who are covered by these protections (WHD 2023),39 funding for WHD has not kept pace with the growth of the U.S. labor force.

Figure J shows that, in inflation-adjusted 2023 dollars, WHD’s budget in 2006 was $250 million, and in 2023, $260 million—an increase of just $10 million over nearly two decades. As Figure J also shows, this trend has been consistent with appropriations for two other key worker protection agencies, the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB). At both OSHA and the NLRB, inflation-adjusted appropriations were significantly lower in 2023 compared with 2006.

Figure J

In addition to funding levels that have barely kept up with inflation at WHD and the 167 million workers WHD has a mandate to protect, the number of WHD investigators that the agency employs, who are primarily responsible for ensuring that federal wage and hour laws are obeyed by employers across all 50 states and U.S. territories, is near an all-time low. Figure K shows that there were only 733 WHD investigators at the end of 2023 to enforce all federal wage and hour laws, 79 fewer than in 1973, the first year for which data are available, and 499 fewer than the peak year of 1978 when there were 1,232 WHD investigators. Meanwhile, the number of workers that WHD has a mandate to protect has increased sharply. The average number of workers in 2023 was 167.1 million, which amounts to 227,989 workers for every wage and hour investigator. Compare this with 1973 when there were 72,588 workers for every wage and hour investigator.40 Investigators are now responsible for more than triple the number of workers as in 1973.

Figure K

The value of back wages recovered by WHD, the number of employees who received back wages as a result of WHD actions, and the total number of hours the WHD spent on investigations “all dropped in fiscal year 2022 compared to the year prior” according to WHD data reported on by Bloomberg Law in December 2022 (Rainey 2022). Despite WHD’s stated intention to hire 100 new investigators during the Biden administration, a heavy workload and inadequate funding from Congress appear to be hindering WHD from hiring enough staff for the tasks at hand. As the same Bloomberg Law report noted, WHD has “struggled to recruit new investigative staff.”

Inadequate labor standards enforcement in agriculture exemplifies the impact of underfunded and short-staffed worker protection agencies

What has been the result of underfunded and short-staffed worker protection agencies like WHD and OSHA in an industry like agriculture in which half of workers lack an immigration status and roughly one-tenth have a precarious status through temporary H-2A visas? There has been a clear downward trend in the number of closed investigations of agricultural employers by WHD over the past two decades, from more than 2,000 a year in the early 2000s, to 1,000 or fewer a year during the last three fiscal years. In fiscal year 2023, WHD closed only 831 investigations of agricultural employers—a record low during the 2000 to 2023 period—amounting to an average of 68 a month in 2023 (WHD 2024). Eight hundred thirty-one investigations in 2023 is just over a third of the 2,431 agricultural investigations closed in 2000, the peak year for WHD agricultural investigations (Costa and Martin 2023). 

The low number of investigations means that most farms are never investigated by WHD; in fact fewer than 1% of agricultural employers are investigated per year (Costa and Martin 2023). Since farm operators know there is a very low likelihood that they will ever be investigated, some may feel emboldened to have a business model that relies on wage theft and other forms of lawbreaking. In addition, when it comes to health and safety violations on farms, reporting from ProPublica suggests that farmworkers are unwilling to come forward to report employer violations because of a perception that OSHA doesn’t have adequate resources to investigate (Sanchez and Jameel 2023).

These issues extend beyond agriculture, but the agricultural industry is a useful microcosm that exemplifies the broader issues. Another problem that was recently identified that extends beyond agriculture is that even when WHD detects and can confirm employer violations, as another report from Bloomberg Law revealed, WHD “cannot litigate every case due to resource issues,” citing violations in the H-2B visa program where employers violated the law but were not punished (Rainey 2023).

Yet another enforcement gap has to do with governance of temporary work visa programs. WHD data show that violations of the H-2A visa program—which allows farm employers to hire temporary migrant farmworkers—now account for the vast majority of back wages owed and civil money penalties assessed on employers (73%) (Costa and Martin 2023). Thus, nearly three-fourths of all penalties in agriculture now result from violations of work visa program rules. WHD also recently reported that in the previous five fiscal years, “in 88 percent of WHD’s H-2A investigations, WHD found employers in violation of the law” (ETA and WHD 2024). That means that when WHD investigates H-2A violations, they nearly always detect them. These data strongly suggest that violations of the H-2A visa program in agriculture are not limited to a few employers who are “bad apples,” but instead that widespread and systematic violations of H-2A rules are ongoing.

In addition, in all U.S. temporary work visa programs, employers that have been found to violate the law—whether it be wage and hour, labor, health and safety, discrimination, or civil rights laws—are nevertheless allowed to continue to hire through visa programs. As numerous investigative reports have shown, even some of the worst violators are allowed to keep hiring, even after they have been sanctioned for lawbreaking and extreme abuses of their workers.41 Changing and enforcing a rule to prohibit them from hiring would also likely require a significant increase in funding to DOL’s Office of Foreign Labor Certification (OFLC), which certifies the applications of employers seeking to hire temporary migrant workers. But funding and staffing levels there have not increased proportionally with the rise in the number of applications for work visas and prevailing wage determinations over the past decade. (OFLC’s workload has increased by nearly 50%, while funding has declined by 4% since 2012 after adjusting for inflation (Costa and Hira 2024)). WHD would also need increased funding to help enforce the rule to bar employers that violate the rules.

Taken together, all of these realities further embolden lawbreaking employers to victimize their employees who lack an immigration status or only have a temporary or precarious status because employers know that unauthorized migrants and temporary migrant workers are unlikely to complain and report violations. And even when workers are brave enough to do so, employers know that labor standards enforcement agencies don’t have the resources or capacity to respond adequately. The ultimate result is that employers can often steal wages and violate labor and employment laws with impunity, which degrade labor standards for all workers, including the U.S.-born workers who work alongside foreign-born workers.

How to reform immigration policies to maximize benefits for workers and minimize challenges

So far in this report we have discussed existing analyses of how immigration impacts the economy and how immigration status impacts wages and worker rights. But we wish to reiterate that most, if not all, of the negative impacts or potential negative impacts that immigration could have on the economy, wages, or labor standards, are the result of how the immigration system is structured and its legal framework. In particular, the rights and protections that migrants and immigrants have depending on their immigration status, or lack thereof, and the employment relationships that result between migrants and immigrants and their employers, are the result of policy choices. A severe power imbalance between workers and employers that is tilted almost entirely in favor of employers is what leads to worker exploitation. Temporary and precarious immigration statuses, or the lack of status, can embolden employers to break laws while making it difficult to hold them accountable.

This section briefly discusses some of the most important policy reforms that should be made to update the immigration system in order to level the playing field between workers and employers, and thereby lift standards and raise wages economywide. Successfully doing so would maximize the economic benefits of immigration and bring credibility to the immigration system, allowing all workers to see that the system is not being misused by employers to degrade wages and labor standards. That credibility is necessary in order to build public support for higher levels of immigration and to assuage the concerns of those who have valid critiques of the current pro-employer U.S. immigration policy framework.

In sum, an immigration system that leads to shared prosperity for all workers means lifting standards and ensuring that all workers have equal and enforceable labor and workplace rights regardless of immigration status—as well as having a flexible and data-driven immigration system that can adjust based on the needs of the economy.

A broad and quick path to a green card for the unauthorized immigrant population and those with precarious statuses

Perhaps unsurprisingly, the first and most important reform needed is a quick and broad legalization for the current unauthorized immigrant population—roughly 5% of the total U.S. workforce—that leads to lawful permanent residence (green cards), making beneficiaries eventually eligible for citizenship. Having 5% of the U.S. workforce vulnerable to exploitation and workplace abuse only benefits lawbreaking employers—and it drags down labor standards for all workers, including  the U.S.-born, naturalized citizens, and green card holders. This reality has existed for far too long and should be an urgent priority for Congress to address.

To maximize economic gains that come with the path to a green card and citizenship—which include raising wages significantly, especially for workers in low-wage industries—the path must be as inclusive as possible. The pathway should not be long and arduous like those that have been proposed in major immigration reform bills of the past, such as S.744 from 2013, which required a 10-year path to a green card and another three years for citizenship eligibility. As discussed earlier, the 1986 IRCA legalization made beneficiaries eligible for green cards after 18 months; the same timeline should be the goal. However, one valid critique of IRCA was that the law’s legalization program was not nearly broad enough; it failed to legalize millions, which left behind the core of today’s unauthorized population (Chishti and Kamasaki 2014).

Having a long and difficult pathway with onerous requirements (which may be designed to reduce the number of eligible beneficiaries for green cards) will have the effect of leaving potential beneficiaries who are awaiting green cards vulnerable to abuse by employers. For example, a requirement that workers be employed for a set number of days per year in a particular industry, such as agriculture, could have the effect of leaving them in a quasi-indentured state. S.744 required potential applicants for green cards to pay processing fees and back federal taxes, as well as meet minimum income and employment tests—requirements that would have led to a significant share of the total unauthorized immigrant population never obtaining a green card—dooming the nation to repeat history.

A long and difficult pathway to permanent status also delays potential wage gains for immigrants and other workers, including U.S.-born workers and earlier immigrants, and the additional tax revenue associated with increased earnings. It makes no sense to restrict the wage gains and other societal benefits that come with a green card, which have been measured time and time again through rigorous research. And it would delay the ability of immigrants to fully integrate and participate in civic life, and make them less likely to make the kind of longer-term investments in their future that would also benefit the broader economy, whether it be purchasing a home, starting a business, or investing in job training and education.

The executive branch should use existing authority to expand temporary rights and protections and issue work permits to protect workers and improve labor standards

The number of people in precarious statuses through temporary protections like parole, deferred action, or Temporary Protected Status (TPS), has increased. There were almost 2.8 million migrants in those statuses as of early 2024, nearly all of whom are eligible for work permits, which are formally known as Employment Authorization Documents (EADs).42 There has also been a large increase over the past decade in the number of asylum seekers who are lawfully employed with EADs, over 1.5 million as of late 2023, who are also in a precarious quasi-status while they pursue their claims.43

In fact, the recent increase in precarious statuses has resulted in close to one-third of the entire unauthorized immigrant population having some form of temporary protection and the workplace rights that come with an EAD.44 As discussed in this report, the workers in precarious statuses who possess EADs are in a vastly better situation compared with being unauthorized with no EAD—because work permits allow them to have workplace rights that can be enforced in practice—even if most are unable to access an eventual path to a green card and citizenship. The current status quo in which one-third of an exploitable population has enforceable workplace rights—however precarious and temporary—is vastly preferable over the prior reality where nearly all had rights that only existed on paper and were virtually impossible to enforce in practice.

Whether through the use of TPS and humanitarian parole—which are based in statute—or deferred action and other forms of prosecutorial discretion, the executive branch has demonstrated across multiple presidential administrations that it has the requisite tools and legal authority necessary to expand temporary rights, protections, and work permits for the millions of migrants who lack an immigration status. (Many of whom have resided in the United States for decades and are deeply integrated into communities across the United States.)

The executive branch should thus take immediate action to improve standards for all workers through new and expanded TPS designations, additional use of humanitarian parole and parole-in-place, and grants of deferred action—at least until Congress acts and passes the most essential reforms necessary. Doing so would instantly improve wages and working conditions for both foreign-born and U.S. born workers in countless industries.

Green cards instead of temporary work visas

There are now at least 2 million temporary migrant workers in the United States who are employed through temporary work visas. The numbers of visas issued and workers in the programs have grown exponentially since the Immigration Act of 1990, while the number of employment-based green cards has remained relatively flat due to the annual numerical limit for employment-based green cards (Costa 2020). Temporary work visas are often the only viable employment-based option for migrant workers seeking jobs in the United States, but as discussed earlier in this report, temporary work visas leave those workers indentured and often (legally) underpaid compared with similarly situated U.S. workers—creating a two-tiered system of rights and standards in the workplace. Moreover, most temporary work visas do not offer a viable or direct path to permanence.

To ensure that all workers have equal rights and to restore the balance of power between employers and workers, the U.S. immigration system should be tilted away from temporary work visa programs and toward providing more green cards for workers. Instead of arriving in a quasi-indentured status and having limited rights, the vast majority of migrant workers should be able to arrive with a green card in hand, giving them the freedom to change jobs if they can earn more or be more productive working for another employer or starting their own business. This will also allow them to benefit from the economic gains associated with green cards and citizenship and to make long-term investments in their future that benefit the U.S. economy.

Reforming work visa programs

Given the critiques reiterated in this report and explained with extensive evidence through various EPI publications, we strongly believe that the U.S. immigration system should shift away from temporary work visa programs because of their inherent flaws that allow employers to exert a coercive amount of power over workers, which allows them to exploit and underpay workers and to violate labor and employment laws with impunity. The bargaining power of all U.S. workers is undercut when more than 2 million temporary migrant workers—1.2% of the U.S. labor force—are underpaid by employers and cannot safely complain to labor standards enforcement agencies or sue employers that exploit them because their visa status is owned and controlled by their employer.

The issue is not that all employers of temporary migrant workers break laws or have bad intentions, but that the current structures and legal frameworks of temporary work visa programs facilitate worker exploitation and are coupled with inadequate mechanisms in place for oversight and accountability. Reforming the system would ensure an even playing field for employers and raise wages and improve standards for both temporary migrant workers and U.S. workers in adjacent occupations and industries.

To achieve this, we propose several key reforms that are necessary to protect workers and modernize the U.S. immigration system:45

1. Congress should require employers to recruit and offer jobs to qualified U.S. workers before being allowed to recruit workers abroad.
2. Congress should regulate foreign labor recruiters to protect migrant workers and ensure transparency in recruitment chains, and hold end-user employers jointly liable for the actions of their recruiters.
3. Employers should be prohibited from hiring through temporary work visa programs if they have violated labor and employment laws, as well as civil rights, anti-discrimination and anti-trafficking laws.
4. Temporary migrant workers should be paid fairly according to U.S. wage standards based on the specific occupation and region.
5. Temporary migrant workers should be allowed to change employers and never be indentured to their employers through their visa status.
6. Temporary migrant workers should be allowed to self-petition for permanent residence after a short period in temporary status; ideally no longer than 18 months.
7. Much more funding should be appropriated to the U.S. Department of Labor to enforce an updated work visa system and strengthen the department’s mandates to conduct adequate oversight and debar employers, as well as to conduct random audits of employers.
8. Transparency in temporary work visa programs should be improved to protect workers and aid anti-trafficking efforts, in particular through the systematic release of more and better government data on temporary work visa programs.
9. An independent commission on employment-based migration and immigration should be established to make the system more flexible and data-driven and to depoliticize the adjustment of numerical limits in temporary work visa programs and for employment-based green cards.

Making U.S. labor migration more transparent, data-driven, and flexible with an independent commission on immigration

The U.S. immigration system needs to be much more flexible and data-driven in order to be responsive and able to adjust to the needs of the economy. Adjusting annual visa caps for both employment-based green cards and temporary work visa programs requires congressional action, which can be contentious because it is influenced by lobbying and opaque political considerations rather than facts, and too slow to keep up with changing economic conditions. Most permanent and temporary employment-based visa quotas have not changed since 1990, despite a vastly different U.S. economy and workforce three and a half decades later.

EPI has long proposed an independent commission on immigration and the labor market that would report regularly to Congress and the president, proposing new quotas on an annual or semiannual basis—based on economic needs and conditions, and issue public reports citing the evidence for its recommendations, which would be based on methodologies that are credible and transparent. The commission would consider the many trade-offs inherent in immigration policymaking in its recommendations, and Congress would ultimately decide which policies to adopt or reject. Basing quotas on evidence, data, and changing economic realities would depoliticize the process of setting numbers and provide an evidence base for decisions that can be inspected by all.46 Other expert organizations and groups have also called for a similar commission model.47

Expanding and strengthening humanitarian migration pathways

The world is experiencing the largest global displacement crisis in modern history, and the forced migration seen on the Western Hemisphere is a major component of the broader global trend (UNHCR 2024). Given the history of interventions in its own hemisphere, the United States government has a special responsibility to at least accept more refugees and asylum seekers from the region,48 but should also accept more from other regions. Existing research already shows that humanitarian migrants see wage gains and integrate well into communities across the United States and make important economic contributions, leaving little to fear from an economic perspective.

Existing humanitarian pathways should be expanded to meet the current need of persons fleeing persecution, conflict, and environmental change by (1) increasing the annual refugee ceiling quotas and investing in a more robust and durable network for resettlement assistance and support and (2) making the U.S. asylum system more welcoming, including by broadening the definition of asylum, either by statute or executive action where possible, including the creation of pathways for migrants who are displaced by the climate crisis and armed conflict. In addition, humanitarian pathways should be improved through strengthening worker protections for newly arriving refugees, asylees, and asylum seekers through know-your-rights trainings. And employers that regularly recruit and hire refugees, asylees, and asylum seekers, should be required to commit to providing fair and decent working conditions, including a commitment to labor neutrality.

To further facilitate workforce integration, public assistance should be made available to new arrivals; work permits should be expedited to boost economic gains and reduce the workload of social services providers, including shelters; and government agencies should partner formally with unions, workers’ centers, and assistance providers on job training and matching workers with employment opportunities.

Adequately funding labor standards enforcement and stricter penalties for lawbreaking employers

As EPI has reported numerous times over the years and as discussed in this report, the U.S. government now appropriates nearly 14 times more for immigration enforcement than on all labor standards enforcement combined ($30.2 billion vs $2.2 billion). Rather than spending tens of billions of dollars per year for immigration enforcement, what’s needed are more resources and staffing for labor standards enforcement agencies, and a more strategic focus on labor standards enforcement that does not take immigration status into account. A shift away from immigration enforcement will result in removing barriers to organizing in workplaces across the country—which will boost economic outcomes through the adoption of collective bargaining agreements—that also serve to close racialized and gendered gaps in wages and working conditions.

At present, labor standards agencies are underfunded, short-staffed, and ill-equipped to hold lawbreaking employers accountable. While immigration benefits the U.S. economy overall as discussed in this report, when worker protection agencies cannot adequately do their jobs, employers can exploit the millions of migrant workers who lack an immigration status or who only have a temporary or precarious status in ways that degrade standards for all workers.

U.S. labor standards enforcement agencies must therefore be staffed and funded adequately to protect the rights of all 167 million workers in the United States, including migrant and immigrant workers, so that lawbreaking employers who abuse workers of any status will face much higher chances of being caught and much higher penalties than they currently do. Congress must make major investments to achieve this, by at least tripling the funds appropriated to worker protection agencies like the Wage and Hour Division and the Occupational Safety and Health Administration in the U.S. Department of Labor, and the National Labor Relations Board.

Family-based immigration should remain an important pathway

Family-based immigration accounts for roughly two-thirds of all green cards and should remain a robust and important immigration pathway. While EPI’s immigration analyses and proposals mainly focus on the employment-based aspects of immigration, we fully support family reunification remaining the dominant pathway in the U.S. immigration system. Family reunification is in the national interest because families are our most basic learning and support systems and therefore greatly facilitate the assimilation of immigrants into American life. Many, if not most, family-based immigrants also enter the labor market and make important economic contributions to the United States, even if these contributions have not been analyzed and measured to the same extent as those of other migrants and immigrants.

Conclusion

As the body of evidence in this report shows, immigration to the United States has contributed greatly to growing the economy, and foreign-born workers have been complementary to U.S. workers and expanded opportunities for them. From an economic and labor force perspective, continuing or increasing immigration levels is not something to be feared if the right polices are in place and governance is improved. The challenges and potential pitfalls that must be addressed are mainly the result of workers lacking equal rights in the workplace due to their immigration status.

The share of those workers in the U.S. labor force, who either lack an immigration status or only have a temporary and precarious status that can expire or be rescinded, is large and growing. A workforce with so many workers in this situation results in a massive power imbalance that benefits employers and allows them to keep workers in fear of calling out workplace violations like wage theft and various other forms of lawbreaking. The precariousness of migrant workers makes it nearly impossible for them to exercise the labor and employment rights they ostensibly have on paper, which leads to degraded workplace conditions for all workers, compared with an ideal scenario in which all workers have full and equal rights. The reforms and policy interventions we have outlined are needed to fix this.

Nevertheless, despite an unjust immigration policy regime and the abuses enabled by the status quo, immigration has still benefitted the economy greatly, including most foreign-born and U.S.-born workers. But if the recommendations outlined here were implemented, leading to a guarantee of full and equal workplace rights for all workers and an improved and expanded labor standards enforcement regime—then future immigration flows and even expansions will result in a fairer and more broadly shared prosperity for all workers and increased dynamism for the U.S. economy.

Notes

1. In this report, the statistics we present from the American Community Survey and Current Population Survey follow the convention that immigrants are synonymous with what the U.S. Census Bureau calls the “foreign-born population”, which are defined as those people in the U.S. who were not citizens at birth. The small number of U.S. citizens born abroad to U.S. parents are not included in the foreign-born population and in this report, are treated as “U.S. born”.

2. The labor market participation rate in 2023 was 66.6% for immigrants and 61.8% for U.S.-born workers (BLS 2024a).

3. CBO (2024) in particular adjusts for the possibility that growing survey nonresponse in the CPS is causing an undercount of the size of the foreign-born population. Correcting this possible undercount also helps to make sense of a recent gap between the household-based CPS and the establishment-based Current Employment Statistics survey, as explained by Edelberg and Watson 2024 and Tedeschi 2024. At the same time, Butcher et al. 2023 argue that the CPS may be overstating the size of the foreign-born population.

4. Appendix B of CBO 2024 reports that their adjustments to the CPS increase the estimated foreign-born population share to 15.6% in 2022 and 16.2% in 2023. In Figure 2 of the CBO report, the total Social Security area population estimates are about 335.5 million in 2022 and about 338.4 million in 2023. Together, these estimates imply that the foreign-born population grew by about 4.8%.

5. See Bivens 2022 for an overview of the U.S. economic situation before the American Rescue Plan passed and the law’s subsequent effect on labor markets.

6. Immigrant workers at a given income level also likely have smaller propensities to consume out of current income than U.S.-born residents because they are much more likely to send remittances abroad to family members in their origin countries. This is another reason why a larger share of immigrants in the population is likely deflationary.

7. For an overview of the evidence on the weak causal link between labor market developments and subsequent inflation, see Banerjee and Bivens 2023.

8. Authors’ analysis of the 2023 Current Population Survey basic monthly microdata. “Dental, nursing, and health aides” refers to the occupations Home Health Aides, Personal Care Aides, Nursing Assistants, Orderlies and Psychiatric Aides, Occupational Therapy Assistants and Aides, Physical Therapist Assistants and Aides, Massage Therapists, Dental Assistants, and Medical Assistants.

9. See Saiz 2010 for evidence on the lack of responsiveness of supply to shifts in demand for housing.

10. See Kmetz, Mondragon, and Wieland 2022 for the effect of the pandemic shock on housing demand.

11. See Schuetz 2022 for an overview of this agenda.

12. For a discussion of monopsony power and wage markdowns, see Manning 2020.

13. Authors’ analysis of Baugh 2023 and Department of Homeland Security Statistics, Yearbook of Immigration Statistics (various years).

14. The fact that these visas are called “nonimmigrant” in U.S. law has to do with the fact that foreign nationals who apply for them are not allowed to immigrate permanently to the United States. U.S. law presumes that all foreign nationals wish to reside permanently in the United States, and in order to be issued a nonimmigrant visa, the applicant for the visa has to prove to the U.S. government that they do not intend to reside permanently in the United States.

15. Authors’ analysis of State Department nonimmigrant visa statistics and U.S. Citizenship and Immigration Services petition data.

16. The Refugee Act of 1980, S.643-Refugee Act of 1979 (title upon introduction), 94 Stat. 102, Public Law 96-212 (March 17, 1980), 96th Congress (1979–1980), Congress.gov.

17. There are also separate provisions in the Immigration and Nationality Act for the granting of asylum on a case-by-case basis to persons who are physically present in the United States or who arrive in the United States and who meet the definition of a refugee. For more background, see Bruno 2019.

18. Authors’ analysis of USCIS Form I-765 data for fiscal years 2022 and 2023.

19. See Ruiz Soto, Gelatt, and Hook 2024, Passel and Krogstad 2024, Baker and Warren 2024, and Warren 2024.

20. See for example, Chishti and Bush-Joseph 2023, Chishti, Bush-Joseph, and Putzel-Kavanaugh 2024, Ruiz Soto, Gelatt, and Hook 2024.

21. See Table A1 in Batalova, Gelatt, and Fix 2024, updated by authors with latest TPS population estimate in Wilson 2024. The 2.8 million total cited here excludes asylum seekers whom we also consider to be in a precarious status. As noted above, there were 1.5 million asylum seekers who held valid EADs in 2023, but the total number of asylum seekers is greater but unknown.

22. See for example, discussion of data in Passel and Krogstad 2024, Baker and Warren 2024, and Ruiz Soto, Gelatt, and Hook 2024.

23. See discussion in Hinojosa-Ojeda 2010.

24. Hinojosa-Ojeda 2010 summarizing and citing Rivera-Batiz 1999; Amuedo-Dorantes, Bansak, and Raphael 2007; and Kossoudji and Cobb-Clark 2002. Kallick 2013 also provides a useful review and commentary on the studies that measure the impact of granting status to unauthorized immigrants (see Appendix A).

25. See for example, Galarza 1956, Meissner 2004, and Costa 2021.

26. See for example, Lapinig 2017.

27. See for example, Bauer and Stewart 2013.

28. See for example, Bauer and Stewart 2013, Garrison, Bensinger, and Singer-Vine 2015, and GAO 2017.

29. See for example, Costa and Hira 2020, Costa 2016, Hira 2015, and Costa 2017.

30. For example, see discussion in Costa 2021.

31. See for example, Hira and Costa 2021 and Costa and Martin 2023.

32. Bivens and Shierholz broadly define “monopsony power” as “the leverage enjoyed by employers to set their workers’ pay.” See Bivens and Shierholz 2018.

33. See for example, Gibbons et al. 2019 and Naidu, Posner, and Weyl 2018 for estimates of monopsony power’s effects in wage suppression in the United States.

34. For more background, see Broder and Lessard 2023.

35. With the exception of back pay under the National Labor Relations Act due to the Hoffman Plastics decision of the U.S. Supreme Court, see for example WHD 2008.

36. For more discussion and background, see Kolker and Morton 2023.

37. For the full list of EAD eligibility categories, see USCIS 2024.

38. This total includes 2.8 million migrants in precarious statuses like DACA, TPS, and parole, and the 1.5 million asylum seekers with an approved EAD (see discussion in previous section).

39. The document cited from WHD does not list a date but was last viewed by the authors in mid-2023, meaning it was likely citing the number of workers in the civilian labor force in 2022; it is referenced as evidence of the number of workers who are protected by WHD. We cite an updated number for the number of workers in the civilian labor force in 2023, as the number for which WHD is responsible for protecting. The number of covered workers is derived from the annual averages reported for the total civilian labor force, Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey, Series Id: LNU01000000, Not Seasonally Adjusted, Series title: (Unadj) Civilian Labor Force Level, ages 16 and over [data tables], U.S. Department of Labor.

40. To derive this estimate, the number of workers in 1973 and 2023 was divided by the number of WHD investigators in those years. The number of covered workers is derived from the annual averages reported for the total civilian labor force, Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey, Series Id: LNU01000000, Not Seasonally Adjusted, Series title: (Unadj) Civilian Labor Force Level, ages 16 and over [data tables], U.S. Department of Labor.

41. See for example, Costa, Martin, and Rutledge 2020, Bensinger, Garrison, and Singer-Vine 2016, and Cotsirilos 2023.

42. Authors’ analysis of Table A-1 in Batalova, Gelatt, and Fix 2024 plus additional updated numbers for the TPS population reported in Wilson 2024.

43. Authors analysis of USCIS n.d. for employment authorization category “C085, applicant/pending asylum.”

44. Authors’ estimate based on the total population of persons in precarious statuses as a share of the total unauthorized immigrant population, which also relies on estimates by Passel and Krogstad 2024 and Batalova, Gelatt, and Fix 2024.

45. For more discussion, see Costa 2021.

46. See further discussion in, for example, Marshall and Eisenbrey 2010, Marshall 2009 and 2011, and Ruhs and Martin 2013.

47. See for example Papademetriou et al. 2009 and Gelatt and Chishti 2024.

48. See for example, Faux 2017, Borger 2018, and Shesgreen 2018.

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Antony Blinken
Secretary, U.S. Department of State

Karen Ward
Director, Office of Private Sector Exchange Designation
Bureau of Educational and Cultural Affairs
U.S. Department of State
SA–5, 2200 C Street NW,
Washington, DC 20522–0505

RE: U.S. Department State, Exchange Visitor Program-Au Pairs, Notice of proposed rulemaking, RIN: 1400-AF12, Document Number: 2023-23650, 88 Fed. Reg. 88 FR 74071 (October 30, 2023)

Dear Secretary Blinken and Director Ward:

The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank established in 1986 to include the needs of low- and middle-income workers in economic policy discussions. EPI conducts research and analysis on the economic status of working people, proposes public policies that protect and improve the economic conditions of low- and middle-income workers—regardless of immigration status—and assesses policies with respect to how well they further those goals. EPI submits these comments to the U.S. Department of State (State) in response to their Notice of Proposed Rulemaking (NPRM) regarding the changes proposed to the J-1 Au Pair program.

EPI has researched, written, and commented extensively on the U.S. system for labor migration, including, in particular, the J-1 Exchange Visitor Program and other temporary work visa programs. EPI has published research on various deficiencies and labor standards protection gaps in the various J-1 programs, submitted public comments on proposed J-1 regulations, and has called for drastic reforms for the J-1 programs that authorize employment. EPI also continues to call for the U.S. Department of Labor (DOL) to take over management and oversight of the J-1 programs that authorize employment because sponsors have financial incentives to cover up wrongdoing in the program, and State has no expertise or mandate in labor standards enforcement and worker protections.

EPI endorses and supports the written comments and recommendations submitted by the Migration that Works coalition and incorporates those comments and recommendations by reference into this comment. EPI is a cofounding member of the Migration that Works coalition, which include organizations that represent both U.S. workers and migrant workers, including J-1 au pair workers.

While more detailed and comprehensive comments addressing many of the NPRM’s provisions can be found in the comment submitted by the Migration that Works coalition, this comment should be considered an addendum to Migration that Works comment, which provides additional analysis and a more extensive recommendation with respect to the wage and compensation proposals in the NPRM.

I. The J-1 exchange visitor program has strayed far from its original mission and is in need of substantial reforms

The J-1 Exchange Visitor Program was created to enhance diplomacy and foster cultural exchange, but it has strayed far from its original mission. As EPI’s first publication on the J-1 program in 2011 revealed, the various J-1 program categories that permit employment have transformed from programs designed to foster international goodwill into sources of cheap and exploitable labor for U.S. employers and families.1 As a result, hundreds of thousands of workers arrive in the United States on J-1 visas each year without adequate protections and are underpaid, and as a result, the program puts downward pressure on labor standards in the industries where J-1 workers are employed.

The history of the creation of the Au Pair program is an interesting one. in 1986, the U.S. Information Agency (USIA) created two pilot programs that established the first manifestation of the Au Pair category. In 1989, six more au pair programs were designated by the USIA based on the pilot programs, and then Congress enacted legislation temporarily continuing the programs. After an internal USIA review and an examination by the Government Accountability Office (GAO), it was determined that the category was not consistent with statutory requirements, but the organizations that sponsored au pair exchange visitors were able to lobby Congress directly and receive explicit authorization to continue the program under USIA’s management.2 The program was then reauthorized every few years by Congress until 1997,3 and in that year, despite media reports of scandals involving au pairs,4 Congress extended the program indefinitely.5

Thus, the Au Pair program’s history of problems dates back to when it was still a pilot program decades ago, and its major flaws were identified at the time by government auditors.

In 1990 the Government Accountability Office (GAO) determined that the “au pair programs are essentially child care work programs that do not correlate with the qualifying categories mentioned in the J-visa statute.”6 GAO illustrates the basic reasoning behind this finding by quoting a Labor Department official who notes that working “a 40 hour week constitutes full-time employment, and as such, makes au pairs temporary foreign workers. These workers would normally have to receive certification from the Department of Labor that enough qualified U.S. workers were not available and that the wages and working conditions attached to job offers would not adversely affect similarly employed U.S. workers.”7 Despite this finding, the necessary reforms were never made, and little else has changed in the program 34 years later, except for an extension of authority granted by Congress to continue the program indefinitely as-is.8

Since then, the J-1 Au Pair program has been plagued by scandal, but industry lobbyists have managed to ensure its survival, and Congress has failed to conduct adequate oversight. There has been insightful and damning reporting on this: For example, an in-depth article in the Washington Post from 2016 and a follow-up podcast on Reveal News with the author,9 as well as a report published by Politico Magazine in 2017, titled “They Think We Are Slaves,” exposing severe deficiencies in the program.10 The Politico Magazine report obtained internal documents from the State Department and paints a picture of an agency with little interest in protecting participants, noting that thousands of complaints from J-1 au pairs over the years were often not “thoroughly investigated or even publicly reported” and that program regulations are ignored with impunity by many host families. And then more recently, there has been reporting by AP, NPR, and the Washington Post and others on the litigation and settlement agreement for $65.5 million between a dozen former au pairs from Colombia, Australia, Germany, South Africa, and Mexico, who were brave enough to bring a lawsuit against the companies that recruited them to work in the United States and then vastly underpaid them.11

The broader J-1 program originally grew out of the Fulbright-Hays Act of 1961, with its noble goal of “increase[ing] mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange.”12 While some of the J-1 programs live up to this language—for example, by allowing Fulbright Scholars and professors to study and teach in the United States—many of the J-1 programs are simply unregulated low-wage work programs. Beginning over 13 years ago, EPI explained in Guestworker Diplomacy and numerous commentaries how the J-1 visa is now mostly a temporary labor migration program disguised as a cultural exchange and administered by an agency—the State Department—that has no staff expertise in regulating, monitoring, or enforcing labor- and employment-law related issues.

While State has proposed some incremental reforms in this NPRM, the disastrously flawed overarching structure for the program remains in place, meaning that few improvements will result in practice, even if they look good on paper. Congress, for its part, has failed to propose any reforms or to ever hold any oversight hearing examining any aspect of the Au Pair program or the broader J-1 visa program—which includes the Summer Work Travel, Intern, Trainee, and Camp Counselor programs—despite numerous cases and reports of worker exploitation and human trafficking.13 But State has the authority to reform the program so that it comports with basic human and labor rights, and so that it is consistent with international standards and protections for domestic workers, including the provisions outlined in the ILO Domestic Workers Convention of 2011. State has repeatedly asserted that it has this authority, by noting in numerous proposed and final rules that State’s management of the J-1 program falls under the foreign affairs exception of the Administrative Procedure Act,14 as it asserts once again in this NPRM.15 Thus, State asserts that it is not even required to take the comments it receives from the public into account when it makes rules for the Exchange Visitor Program; in other words, State believes it can do almost whatever it wants because it claims it is conducting foreign affairs—despite the reality that it is running a low-wage temporary worker program within the territory of the United States.16

In our view, State has shown that it is wholly unqualified to manage the J-1 program. DOL has no formal role in any of the J-1 programs, leaving workers with little recourse when things go wrong, since the sponsor organizations tasked with protecting them are often profiting from the existence of the program, making them unlikely allies. The fact that sponsor organizations profit from the program but are also tasked with finding and satisfying employers and host families, and also primarily in charge of protecting the migrant workers who participate, is an obvious, scandalous, and unconscionable conflict of interest. Media reports and organizations that advocate on behalf of J-1 workers like Centro de los Derechos del Migrante and the Southern Poverty Law Center have reported real-life stories of how this arrangement results in a dysfunctional program where severe abuses and exploitation of young migrants are regular occurrences.17

There’s no question that child care is too expensive in the United States—EPI has shown how child care is unaffordable for most and one of the costliest expenses that families face.18 If any progress can be made, large-scale solutions and federal involvement will be required. Families that have child care needs but can’t afford to pay for them deserve help. The J-1 lobby, knowing this, has successfully leveraged this reality with members of Congress to protect the J-1 Au Pair program from scrutiny. But the answer to America’s child care affordability crisis is not to have State run a program that allows migrant workers (the vast majority of whom are women) to be underpaid, abused, and exploited. The $65.5 million settlement in Colorado was just the latest piece of evidence proving that the J-1 Au Pair program is, in reality, an unregulated low-wage work program veiled in the false noblesse of achieving America’s foreign policy goals.

II. Discussion of the proposed rule’s section on wages, compensation, and stipends

Despite the concerns related to protecting and enforcing labor standards that have already been highlighted in this comment, we nevertheless commend the State Department for proposing to raise the wage standard for J-1 au pairs from one based on the federal minimum wage, to one that at least acknowledges and attempts to reflect the more protective minimum wage and overtime pay laws that have been enacted in states, cities, and counties across the United States.

We wish to note that in this section we will refer compensation owed to J-1 au pairs as “wages,” not a “stipend,” because in fact, au pairs are being paid an hourly wage. This is evidenced by the fact that they are hourly employees and that the wage they earn is reflecting, as State notes, the wage rates that have been established for “the highest of the federal, state, or local minimum wage” (emphasis added). To refer to the wages paid to au pairs as a stipend is a legal fiction which State appears to engage in, in order to support State’s dubious claim with respect to the J-1 Au Pair program: namely, the shaky claim that the program is not a conventional work visa program and that it is not being used primarily to supply low-wage workers to parents with child care needs. There is no question that the Au Pair Program and other J-1 work programs like Summer Work Travel are primarily work programs that may happen to include some small cultural exchange component.

A) The Au Pair wage rule should respect the highest standard at the local, state, or federal level, rather than create a new, confusing structure for which State has failed to explain the reasoning.

State has created a new “four-tiered au pair compensation mechanism based on the highest of the federal, state, or local minimum wage” that is in effect in the employer/host family’s city. While the proposed formula would undoubtedly benefit some au pairs who live in a jurisdiction that has a minimum wage at the lower end of the tier—because they would be paid the wage at the top of the tier—we nevertheless question State’s proposal to introduce the complexity of the formula. State has failed to adequately explain why this formula should be used instead of simply establishing and explicitly stating that all local, state, and federal wage and hour laws apply to au pair workers, and that they should be paid the highest applicable wage in the jurisdiction in which they will be employed.

In fact, State’s formula could conflict with local and state laws and will create confusion as to which law applies. Sponsors and employer/host families will now need to consider the applicable city, county, state, and/or federal minimum wage, as well as an additional applicable minimum wage that would be set by State in this proposed rule. The rule will also create confusion for labor standards enforcement officials, who will be unsure as to which law applies and how to enforce it. Instead, the simplest and easiest method for determining the lowest wage that an au pair worker could be paid, should be the already-existing local, state, or federal minimum wage. (Although, it’s worth noting that nothing in the rule would prevent the employer/host family from paying a higher wage than the highest applicable minimum to their au pair employee.)

Simply requiring that the highest of the local, state, or federal minimum wage applies to J-1 au pair workers would also make the au pair wage rule consistent with the biggest J-1 work program, Summer Work Travel. The Summer Work Travel’s regulation on “participant compensation” at 22 CFR § 62.32(i) requires that:

(1) Sponsors must inform program participants of Federal, State, and Local Minimum Wage requirements, and ensure that at a minimum, participants are compensated at the higher of:

(i) The applicable Federal, State, or Local Minimum Wage (including overtime); or

(ii) Pay and benefits commensurate with those offered to their similarly situated U.S. counterparts.

Note that not only does the Summer Work Travel program require that the highest of the local, state, or federal minimum wage, but also requires that J-1 SWT workers receive pay and benefits that are “commensurate with those offered to their similarly situated U.S. counterparts.” State has offered no justification for why the wage rule for au pairs should not be the same. In addition, the following section addresses how State could set the J-1 au pair wage at a level that is commensurate with what other au pairs are earning in the local region.

B) State should use available data from the U.S. Department of Labor to set a more appropriate minimum hourly wage for au pair workers—by using the local average wage for childcare workers from the OEWS—rather than setting the Au Pair program’s minimum wage according to the four-tiered formula.

While State has taken a step in the right direction by acknowledging and attempting to reflect local and state minimum wage laws in setting wages for the Au Pair program, we nevertheless do not believe that the hourly minimum wage—whether it be the city, country, state, or federal minimum wage—is the wage that should set the Au Pair program wage. The minimum wage is an inadequate comparison here because it does not correspond to what child care workers earn in jurisdictions across the United States, as evidenced by available public data sets from the U.S. Census and the U.S. Department of Labor (DOL). Given that the Au Pair program is a de facto temporary worker program, State should take a page from the administration of other U.S. temporary work visa programs when setting Au Pair program wages.

EPI published a report in late 2021 showing that child care and home health care workers are deeply undervalued and underpaid, and as the report authors explain, the devaluation of the care sector is fundamentally intertwined with historical and current ableism, sexism, xenophobia, and racism.19 State’s Au Pair program wage rule must not perpetuate these realities and disparities, and instead should look to lift standards for child care workers by setting an appropriate hourly wage. The EPI report presented a set of benchmarks for setting higher wages for child care and home health care workers and estimated what fair and equitable wages would look like in the care sectors, finding that care workers should be paid on average nationwide, at minimum, an hourly wage between $21.11 and $25.95 (in 2022), depending on the benchmark applied.20

While we ask that State review and apply the benchmarks considered by the EPI authors, at a minimum we urge that State require that employer/host families be required to pay a wage that is no less than the local average wage that is being paid to other child care workers in the area where the employer/host family resides.

There are two main data sets that can be looked to for setting the minimum for child care workers. First, are data from the U.S. Census, specifically the Current Population Survey (CPS). While the CPS is a useful data set that can be used to tie the surveyed wages paid to child care workers to other demographic information, unfortunately those data are not always readily available for every locality and the sample sizes may be too small to be reliable in smaller states and localities.

The other data set is the Occupational Employment and Wage Statistics (OEWS), which publishes survey data for virtually every occupation with a corresponding Standard Occupational Classification code and for every local region in the United States, whether it be a county, metropolitan statistical area, or a nonmetropolitan statistical area.21 The OEWS has data on employment and wages and major industries for child care workers at the page on its website for “39-9011, Childcare Workers”22 (39-9011 is the SOC code for child care workers). The OEWS page for child care workers specifies that it covers workers who attend to children in private households, and excludes preschool teachers and teaching assistants. Thus, the OEWS data for 39-9011, Childcare Workers is adequately specific to the work that J-1 au pairs will be doing in the United States and should be used to set the lowest permissible wage rates in the Au Pair program.

As State may already be aware, the wages published in the OEWS are used to set the prevailing wage rates for two of the other major U.S. temporary work visa programs, the H-2B and H-1B programs. When applying for approval of a temporary labor certification application or a labor condition application, employers must first visit the Foreign Labor Certification Data Center website, at FLCdatacenter.com.23 At that website, employers obtain the appropriate wage for the occupation and local area where the H-2B or H-1B worker will be employed. The FLCdatacenter.com website is public, free, simple and easy to use, and is based on the OEWS wages surveyed by DOL. Employer/host families could simply visit the website, select the “FLC Wage Search Wizard,” and then select the location where they reside and where the au pair worker will be employed, and then select the occupation of 39-9011, Childcare Workers. The website will generate a page that lists four wage “levels” which represent different percentiles of wages surveyed—which are used to set H-1B wages and would not be relevant for au pairs—and it lists the mean wage (i.e. the average wage) of the wages surveyed for that specific occupation and location.

The required au pair minimum wage should never be any lower than the local average (mean) wage for child care workers as listed in the FLC Data Center website. In almost all cases, the local average wage for child care workers will be higher than whatever the local, state, or federal minimum wage requires in that jurisdiction. This is because most child care workers do not earn the minimum wage, they earn a wage that is slightly higher .If State only requires that employer/host families pay the local, state, or federal minimum wage—they will by definition, be putting downward pressure on local wages and labor standards for child care workers. State should refrain from causing this outcome and do everything in its power to protect local labor wages and rise above the bare minimum of local labor standards, especially given the fact that real enforcement and DOL involvement is lacking in the program. Having a higher wage standard is not a substitute for DOL involvement and real labor standards enforcement, but it is the absolute least that State can do to protect wage standards for au pairs and other child care workers.

Here we’ll provide two examples to illustrate where the local average au pair wage would be higher than the applicable minimum wage. In Merced, California, an area where housing costs are relatively much lower than in the rest of the state, the applicable minimum wage is the California state minimum wage of $16 per hour. According to FLCdatacenter.com, the current average wage for child care workers in Merced is $17.53 per hour.24 Thus, in Merced, California, the minimum au pair wage should be set at $17.53 per hour, since that is what child care workers earn on average in the local area.

Now let’s look at Savannah, Georgia. In Savannah, there is no city or country minimum wage law, and Georgia has a state minimum wage law setting an amount that is lower than the federal minimum wage, meaning that the federal minimum wage of $7.25 an hour applies as the default minimum wage law for workers in Savannah. Under State’s proposed formula, au pair workers would be paid $8 per hour because Savannah would fall under Tier 1. But the OWES data at FLCdatacenter.com shows that the local average wage for child care workers in Savannah is $12.15 per hour.25 An hourly wage of $12.15 an hour represents a 68% increase from the federal minimum wage that would otherwise apply, and represents a 52% increase from what the Tier 1 wage in State’s formula would require. Thus, using State’s formula, J-1 au pair workers in Savannah would continue to be vastly underpaid vis-à-vis the going rate for child care workers in the Savannah area, and employer/host families would get significant savings on labor costs compared to hiring a child care worker in the Savannah area. This of course, would result in putting downward pressure on local wages and labor standards.

Finally, another justification for the use of the local average wage to set J-1 au pair wage rates is that “Under paragraph (t)(1)(d), the Department of State proposes to preempt all state unemployment insurance taxes and the employment training taxes” from the Au Pair program.26 Doing so gives a further financial incentive to host families to hire J-1 au pairs instead of local workers, and denies local, state, and federal coffers the funds they would otherwise receive to administer unemployment insurance and other key programs that benefit all workers. This preemption gives employer/host families an exemption from paying certain taxes that most employers have to pay on behalf of their workers. This additionally puts downward pressure on wages and labor standards by making J-1 au pairs even less expensive to hire than locally available child care workers. State says this almost explicitly when it notes that this exemption results from its “concern[ ] about burdening au pair programs with the payment of additional general welfare taxes so as to further restrict affordability of the program.”27

Given this exemption and its impact, it is even more important that State recognize the impact this will have on labor standards for child care workers in the United States, and in response, State should require that child care workers be paid no less than the local average wage as set by the OEWS.

C) State should adjust au pair wage rates upward based on workload, number of children cared for, and other factors.

In order to account for the reality that some J-1 au pair workers will be required to complete more child care tasks as a routine part of their employment with employer/host families—In addition to requiring that J-1 au pair workers be paid the local average wage for childcare workers based on wages in the OWES—State should develop and implement a workload adjustment formula, where certain factors would automatically trigger a higher base salary.28 For example, each additional child beyond one child should trigger an increase in the base salary.

Employer/host families gain significantly in terms of financial/labor cost savings by hiring an au pair when they have more than one child; sending multiple children to a child care center would increase their costs by a factor of 100% for each additional child. State should not run the Au Pair program as a labor program that undercuts labor standards with a race to the bottom in term of wages and salaries. But State will be doing exactly that if they do not increase base pay for J-1 au pairs significantly for each additional child they must care for beyond a single child. In addition, with respect to children who have special needs, if a family attempts to find specialized child care for children with disabilities or other needs in the open market, they will likely incur additional costs because specialized care requires additional skills, care, and effort. State should not undercut labor standards for special-needs child care workers either; thus, J-1 au pairs who care for children with special needs should also be entitled to an automatic base salary increase. State should conduct market research to determine the amounts of increases merited by caring for multiple children and children with special needs, as well as research to determine additional factors that would justify increases in base pay, and what the amounts should be for each.

D) If State retains the proposed four-tiered wage formula, the formula should be updated annually to reflect changes in minimum wage laws.

We have argued in this section that State should not utilize the currently proposed four-tiered wage formula and should set a higher wage standard based on the surveyed OEWS wage rates. With that said, if State nevertheless finalizes the rule with the four-tiered wage formula in place as proposed, then we would urge State to update the formula every year to reflect changes in local and state minimum wage laws, rather than every three years as proposed.

Updating the formula every three years will not actually reflect local and state minimum wage laws, which are often updated annually. Updating every three years may not even reflect the federal minimum wage, if it were to be increased by Congress and indexed to inflation,29 if State does not schedule an update to the formula in the same year that the law goes into effect.

According to EPI’s Minimum Wage Tracker website, 30 states and the District of Columbia have minimum wage laws that require a higher minimum wage than the federal minimum wage, and 58 localities that have adopted minimum wage laws requiring an hourly wage that is higher than the wage required by minimum wage law in the state.30 There are only eight states that have no minimum-wage law or a minimum wage that is set below the federal minimum wage, and where as a result, the federal minimum wage applies.31

In the states, cities, and counties that have higher minimum wages than the federal minimum wage, many are adjusted every year, either according to a formula set in statute or to account for inflation. In fact, EPI has reported that 23 states increased their minimum wage rates in late 2023 early 2024, and 38 cities and counties increased their minimum wage rates on January 1, 2024.32 These increases will impact 10 million workers. Au pairs should not be exempted from these minimum wage increases because of State’s failure to update the four-tiered formula on an annual basis. Delaying the necessary annual increases to the formula based on increases in state and local minimum wage laws will also have the effect of preempting state and local minimum wage laws—something State suggests it is trying to avoid—and it will cause greater confusion for all stakeholders.

By only updating the formula every three years, and without further guidance on how the formula should be updated, State will not only be prohibiting au pairs from getting the minimum wage increases they may be entitled to, but will also give future administrations the leeway to slow-walk any future increases. This will make au pair wages fall even further behind the minimum wage standards that are in force. A future administration would only be required to update the wage formula once during its term, and since State has not proposed an explicit requirement that the update ensure that the new wage rates correspond to the highest wage rates required by state and local minimum wage laws, future administrations will not be compelled to do so. State only offers an example saying that updating the formula to correspond to local and state minimum wage laws is one of the possible methodologies to use for increasing the wages required in the formula, but it is not an explicit requirement.

Again, we wish to reiterate that it would be much simpler and fairer if State simply required that au pairs be paid no less than the local average wage for child care workers as determined by the OEWS. But if State refuses to take this recommendation to protect wage standards for child care workers, then the highest applicable local, state, or federal minimum wage should apply to au pairs. Both of these options will be much simpler for stakeholders and render the four-tiered formula unnecessary.

E) State should not permit any deductions from au pair salaries for room and board.

We are disappointed that in the proposed rule, State proposes to continue allowing deductions from the wages of J-1 au pair workers based on the deductions State argues are permitted in the Fair Labor Standards Act (FLSA), calculated as percentages of the federal minimum wage of $7.25 per hour. We believe that these deductions should not be permitted.

The FLSA regulations that State cites at 29 CFR § 552.100 permit deductions for meals and lodging for live-in domestic service employees, and State uses those guidelines to calculate the permissible maximum weekly deductions, which in total amount to $130.54. However, we do not believe that J-1 au pair workers should have those amounts deducted from their wages because the meals and lodging provided are for the primary benefit and convenience of the employer.33 The J-1 au pair worker’s ability to live and eat in the employer/host family’s home is what allows the au pair to be close to the children they are taking care of virtually at all times or when called upon. If they did not live in the family’s home, it would be practically impossible to provide round-the-clock child care, which is what the families that participate in the Au Pair program are hoping to get in return for the fees and salary they are paying. 

In addition, the families that are participating in the Au Pair program, by definition, must have substantial means to participate in the Au Pair program. They must, for example, have at least roughly $20,000 dollars of disposable income to spend on Au Pair program fees and salary, and have a home large enough to have an extra room where the au pair worker will reside, which is itself a sign of at least moderate to significant economic comfort. It is unreasonable to put the burden of room and board on the much lower-paid J-1 au pair , rather than putting that cost on the wealthy families who are benefitting from worker-provided full-time, live-in child care in their home.

Even if a family that is participating in the Au Pair program paid the full amount allowed for weekly deductions for room and board for an entire year, the maximum they would be required to pay towards the au pair’s room and board would be $6,788.08 ($130.54 x 52 weeks). It is reasonable to require families in the Au Pair program to be required to cover this amount in exchange for the extensive services they receive, rather than taking cuts out of the paychecks of the minimum wage-earning employees living in their homes .

In the H-2A visa program, for migrant farmworkers, employers are required by statute to provide room and board to their H-2A employees at no cost to the employees. When Congress created the program, their rationale for this was that migrant farmworkers earning low wages should not be required to pay for their own room and board. Because they will be living on the farms where they will work, it is obvious that farm owners are the ones who primarily benefit from having farmworkers reside onsite, in close proximity to their worksite. H-2A farmworkers, it should be noted, earn an hourly salary that is higher than the minimum wage, which is called the Adverse Effect Wage Rate, which is based on the average salaries of farmworkers in their region, as surveyed by the U.S. Department of Agriculture. J-1 au pair workers, in comparison, do not earn the average wage for their occupation in the local area, they simply earn the minimum wage. Thus, despite rules establishing that J-1 au pairs have a lower hourly minimum wage than H-2A farmworkers in the same region who are provided room and board, State is exposing J-1 au pairs to deductions of a significant amount of their salary for room and board.

As discussed above, in the J-1 Au Pair program, Congress merely authorized the program but did not construct it. The J-1 program is entirely a creature of regulation developed by State, an agency with no expertise or mandate related to labor standards, and arguably the program stretches the bounds of what the Fulbright Hays Act authorizes. Nevertheless, it is clear that State did not take into consideration these issues regarding compensation and deductions for room and board when developing the program. State now has an opportunity to fix the program by requiring families to cover the costs of room and board for au pairs.

F) If State continues to allow deductions for room and board from au pair wages, it should prohibit any further deductions for any other items or services.

If State decides not to accept our recommendation about deductions for room and board and modify the program accordingly, then we strongly urge State to prohibit any further deductions than the ones proposed for room and board. The proposed rule at page 74079 discusses J-1 au pairs being “charged for in-kind benefits (e.g., gym membership, cell phones) only as the au pair and host family agreed in the Host Family Agreement.” In other words, employer/host families would be permitted to deduct the cost of goods and services like phones and gym memberships from the already too-low minimum wage salaries of J-1 au pair workers—as long as those deductions are included in the Agreement. This would be in addition to the $130.54 that is already being deducted from J-1 au pairs for room and board in most cases. We believe this is unreasonable and unfair to J-1 au pairs, and that State should prohibit these additional deductions.

The low, minimum wage salaries that J-1 au pairs earns are too low to be a living wage. The unreasonable amounts already being deducted for room and board from those low salaries lower their pay to shockingly low levels—levels that would not allow a single person to survive in even the lowest-cost regions of the United States. For example, for one adult with no children to live comfortably in Sioux Falls, South Dakota—which was named the most affordable city to live in the United States34—that adult would need to earn $34,092 per year. 35 Given South Dakota’s state minimum wage of $11.20 per hour, an au pair working in Sioux Falls would be entitled to the proposed Tier 2 wage of $12 an hour. A J-1 au pair who worked an entire year for 40 hours per week at $12 an hour would earn $24,960, before deductions for room and board. After a year’s worth of room and board deductions are subtracted, the J-1 au pair would earn roughly $18,172. Therefore, allowing further deductions for basic items like cell phones from J-1 au pairs who are already earning extremely low wages would be unconscionable.

In addition, every allowance for an additional deduction also creates more opportunities for wage theft. Though the costs need to be documented, employer/host families can easily lie, misrepresent, or overcharge for such items. Au pairs may often be unable to verify the costs by looking at monthly bills for cell phones and gym memberships, and other goods and services. In the case of cell phones in particular, an au pair having a cell phone would primarily benefit employer/host families by allowing them to be in constant contact with au pairs. For this reason, State should specifically prohibit employer/host families from making deductions for the cost of cell phones that they provide to J-1 au pairs.

G) We generally support State’s proposal to provide overtime pay to J-1 au pair workers in accordance with the highest amount required under local, state, or federal law.

We commend State for proposing to require that employer/host families adhere to the highest amount required under the overtime laws of the local, state, or federal law that applies where the employer/host family resides. We agree that the best rule for overtime is to require that au pairs “be compensated for those excess [overtime] hours at the hourly rate of the applicable tier identified in proposed paragraph (n)(4)(ii) of the regulations, and they must also be paid any overtime premium due under applicable federal, state, or local law. In addition, under the proposal, au pairs must be paid any other overtime premiums due under applicable federal, state, or local law for other hours worked.”36 And we commend State for explicitly stating that J-1 Au Pair “regulations would not preempt state and local laws regarding overtime pay.”37

While we believe that State is taking the appropriate action with respect to applicable overtime pay laws, the proposal serves as a reminder that State should be proposing to do the same with respect to the minimum wage laws. In other words, instead of creating a complicated four-tier formula that supersedes the hourly minimum wage rate that would be “due under applicable federal, state, or local law,” and which is unlikely to keep pace with the U.S. states and localities that regularly update their required minimum wage rates (as discussed above), State should apply the same logic to the minimum wage section of the regulation as it does to the overtime section of the regulation, by specifying that the highest applicable local, state, or federal minimum wage law applies in all cases with respect to wage rates.

By not preempting some wage and hour laws, but then preempting others, State risks creating a confusing patchwork of rules that will confuse all stakeholders. State should simplify the regulation by respecting and requiring adherence to the highest applicable labor standards in every aspect of the program.

H) State should require that documentation of timesheets be primarily tracked by J-1 au pair workers, who are best situated to track their weekly hours and fill out the timesheets, rather than having the employer/host family keep records and provide it after the fact to au pair employees.

In order to prevent employer/host families from manipulating timesheets and not adequately tracking all hours worked by J-1 au pairs, the au pairs should be the primary trackers of the hours on their weekly timesheets. J-1 au pairs are best situated to know how many hours they worked and on which days, as well as how many meals they ate each day that will result in a deduction in pay.

There are available electronic tools that can be used by both employer/host families and J-1 au pair employees. One is the DOL’s “Timesheet App,” which allows both workers and employers to easily record hours worked and calculate pay.38 State should encourage J-1 au pair workers to use the Timesheet App and keep their own records in case a dispute arises.

Timesheets could also be kept in a shared document in the cloud, such as a Google doc or a Sharepoint file. This way, both employer/host families and J-1 au pair employees could input what they have tracked as the number of hours worked, and they could include comments, explanations, and evidence with respect to certain entries if there is a dispute, and these could later be reviewed by sponsors or State if the disputes are not resolved between the employer and employee.

In any case, we again reiterate that J-1 au pair workers should be primarily responsible for approving the tracking of hours and keeping timesheets—not employer/host families—and the timesheets should never be approved or submitted to sponsors without J-1 au pairs having the opportunity to review and approve the timesheets before they are finalized and shared with sponsors.

Thank you again to the State Department for considering these comments and recommendations. EPI looks forward to the Biden administration implementing the final rule in a manner that integrates the improvements suggested here and in the comment submitted by the Migration that Works coalition, as well as making any and all other regulatory and subregulatory improvements that the administration can make to protect workers and improve labor standards in the J-1 Exchange Visitor Program.

Best regards,

Daniel Costa
Director of Immigration Law and Policy Research
Economic Policy Institute

1. Daniel Costa, Guestworker diplomacy: J visas receive minimal oversight despite significant implications for the U.S. labor market, Economic Policy Institute, July 14, 2011.

2. Susan Epstein, The Au Pair Program, Congressional Research Service: Report 95-256, January 30, 1998.

3. An Act to Extend Au Pair Programs, Pub. L. No. 104-72, 109 Stat. 776 (December 23, 1995); State Department, “Au Pair Statutory Authority,” Pub. L. No. 105–48, 111 Stat. 1165 (October 1, 1997); see also United States Information Agency, “Policy Statement on Au Pair Program,” 22 C.F.R. Part 514 (March 4, 1996), last accessed May 27, 2011 but no longer available online, http://dosfan.lib.uic.edu/usia/GC/GC_Docs/WhatsNew/ht3.txt.

4. Warren Cohen, “Home Wreckers: Congress’s role in the au pair tragedy,” The New Republic, November 24, 1997, last accessed May 27, 2011 but no longer available online, http://wjcohen.home.mindspring.com/other- clips/aupair.htm.

5. State Department, “Au Pair Statutory Authority,” Pub. L. No. 105–48, 111 Stat. 1165 (October 1, 1997).

6. Government Accountability Office, U.S. Information Agency: Inappropriate Uses of Educational and Cultural Exchange Visas, GAO/NSIAD-90-61, February 16, 1990.

7. Government Accountability Office, U.S. Information Agency: Inappropriate Uses of Educational and Cultural Exchange Visas, GAO/NSIAD-90-61, February 16, 1990.

8. State Department, “Au Pair Statutory Authority,” Pub. L. No. 105–48, 111 Stat. 1165 (October 1, 1997).

9. Noy Thrupkaew, “Are au pairs cultural ambassadors or low-wage nannies? A lawsuit enters the fray.” Washington Post, November 3, 2016; Reveal News, “Host of Problems,” November 5, 2016.

10. Zack Kopplin, “‘They Think We Are Slaves’: The U.S. au pair program is riddled with problems—and new documents show that the State Department might know more than it’s letting on.” Politico Magazine, March 27, 2017.

11. Colleen Slevin, “About 10,000 au pairs to get paid in class-action settlement,” AP, July 18, 2019; Lydia DePillis, “Au pairs provide cheap childcare. Maybe illegally cheap.” Washington Post, March 20, 2015; Vanessa Romo, “Au Pair Sponsor Agencies Settle Wage Lawsuit, Offer $65.5 Million In Back Pay,” NPR, January 9, 2019.

12. Fulbright-Hays Act of 1961, 22 U.S.C. ch. 33 § 2451 et seq. (Pub. L. 87–256, 75 Stat. 527).

13. See for example, Ellen Wulfhorst, ”Foreign students recruited as au pairs face abuse in U.S.: report,” Reuters, August 21, 2018; Miriam Jordan, Kris Maher and Julie Jargon, “Guest Worker Visa Troubles Visit McDonald’s,” Wall Street Journal, March 8, 2013; Holbrook Mohr, Mitch Weiss and Mike Baker, “AP IMPACT: US fails to tackle student visa abuses,” Associated Press, December 6, 2010

14. See discussion in Daniel Costa, Guestworker diplomacy: J visas receive minimal oversight despite significant implications for the U.S. labor market, Economic Policy Institute, July 14, 2011.

15. 88 Fed. Reg. 74084 (October 30, 2023).

16. See discussion in Daniel Costa, Guestworker diplomacy: J visas receive minimal oversight despite significant implications for the U.S. labor market, Economic Policy Institute, July 14, 2011.

17. Centro de los Derechos del Migrante, Shortchanged: The Big Business Behind the Low Wage J-1 Au Pair Program, August 2018; Meredith Stewart, Culture Shock: The Exploitation of J-1 Cultural Exchange Workers, Southern Poverty Law Center, February 2, 2014.

18. See for example, Economic Policy Institute, “Child Care Costs in the United States,” last updated October 2020.

19. Asha Banerjee, Elise Gould, and Marokey Sawo, Setting higher wages for child care and home health care workers is long overdue, Economic Policy Institute, November 18, 2021.

20. See benchmarks at Table 1 in Asha Banerjee, Elise Gould, and Marokey Sawo, Setting higher wages for child care and home health care workers is long overdue, Economic Policy Institute, November 18, 2021.

21. See Occupational Employment and Wage Statistics, “Overview,” U.S. Bureau of Labor Statistics, U.S. Department of Labor (Last Modified Date: April 25, 2023).

22. Occupational Employment and Wage Statistics, “39-9011 Childcare Workers,” U.S. Bureau of Labor Statistics, U.S. Department of Labor (May 2022).

23. The FLCdatacenter.com website is developed and maintained by the State of Utah under contract with the DOL’s Office of Foreign Labor Certification.

24. “Childcare Workers” data for Savannah, Georgia, U.S. Department of Labor: Foreign Labor Certification (FLC) Data Center Online Wage Library, retrieved January 18, 2023.

25. “Childcare Workers” data for Savannah, Georgia, U.S. Department of Labor: Foreign Labor Certification (FLC) Data Center Online Wage Library, retrieved January 18, 2023.

26. 88 Fed. Reg. at 74081 (October 30, 2023).

27. 88 Fed. Reg. at 74082 (October 30, 2023).

28. See discussion in Victoria Bejarano Hurst Muirhead, “‘I’d never let my sister do it’: Exploitation Within the U.S. Au Pair Program,” Lewis & Clark Law Review, Notes and Comments, Vol. 26, January 2022, at page 271.

29. For example as proposed in the Raise the Wage Act. See Economic Policy Institute, “Why the U.S. needs at least a $17 minimum wage: How the Raise the Wage Act would benefit U.S. workers, their families, and entire communities,” Fact Sheet, July 31, 2023.

30. Economic Policy Institute, “Minimum Wage Tracker,” values current as of January 1, 2024.

31. Economic Policy Institute, “Minimum Wage Tracker,” values current as of January 1, 2024.

32. Sebastian Martinez Hickey, “Twenty-two states will increase their minimum wages on January 1, raising pay for nearly 10 million workers,” Working Economics blog (Economic Policy Institute), December 21, 2023.

33. See discussion of FLSA section 203(m) in Wage and Hour Division, “Credits Toward Wages under Section 3(m) Questions and Answers,” U.S. Department of Labor.

34. Laura Begley Bloom, “20 Most Affordable Places To Live In The U.S., According To A New Report,” Forbes, October 31, 2023,

35. See EPI’s Family Budget Calculator for estimates on “the income a family needs in order to attain a modest yet adequate standard of living.” Even in a low-cost area like Baton Rouge Louisiana

36. 88 Fed. Reg. at 74079 (October 30, 2023).

37. 88 Fed. Reg. at 74081 (October 30, 2023).

38. See Wage and Hour Division, “Track Your Hours: Just Tap the App,” U.S. Department of Labor [last accessed on January 18, 2024]; U.S. Department of Labor, “Introducing the DOL-Timesheet App,” YouTube.com [last accessed on January 18, 2024].