On May 26, CUPA-HR, joined by 15 other higher education associations, submitted comments in response to the U.S. Department of Labor’s (DOL) Notice of Proposed Rulemaking titled “Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States.” As previewed in March, the proposed rule would substantially raise prevailing wage minimums across the H-1B, H-1B1, E-3, and PERM programs that colleges and universities rely on to recruit and retain faculty, postdoctoral researchers, scientists, physicians and other specialized employees.
The comments urge DOL to exempt institutions of higher education from the proposed changes — or, at minimum, delay their application for at least two years — and to retain the existing authority for employer-provided alternative wage surveys, including CUPA-HR’s. The coalition supports DOL’s interest in ensuring the H-1B and related programs protect U.S. workers, but the comments warn that DOL did not separately analyze the higher education labor market and that the proposed rule rests on assumptions that do not reflect how these programs operate in the sector.
If finalized as proposed, the rule could hamper institutions’ ability to sponsor and retain faculty, researchers and clinicians in positions essential to teaching, research and patient care. The comments draw on six years of DOL disclosure data and the most recent cycle of CUPA-HR’s annual workforce surveys to dispel several of DOL’s central premises as applied to the sector.
The comments focus on several key areas of the proposed regulation:
- Where higher education’s H-1B workers are. DOL’s analysis treats the H-1B workforce as a single labor market and calibrates the new wage levels accordingly. In higher education, the workforce looks very different. The sector files most of its H-1B cases at Wage Level I — the level most affected by the proposed change — at roughly four times the rate of all other industries, because doctoral-credentialed early-career faculty and researchers are routinely classified at the entry rung even though they hold the field’s terminal degree. The occupations driving higher-education Level I filings (postsecondary teaching positions, medical scientists, biochemists) are largely absent from the non-higher-education workforce DOL used to build its analysis.
- What higher education’s H-1B workers are paid. DOL’s premise is that the existing prevailing wage structure permits systematic underpayment of H-1B workers relative to comparable U.S. workers. CUPA-HR’s survey data, covering more than 1,000 participating institutions, show that H-1B faculty are paid on par with their non-H-1B peers in the same faculty categories at the same institutions, and that higher education employers already pay offered wages well above the Level I prevailing wage floor. The premise does not hold in higher education.
- Reliance interests across multi-year academic pipelines. Higher education has structured academic hiring, research staffing, clinical programs, and immigration sponsorship around a prevailing-wage framework that has been in place for roughly two decades. Faculty searches operate on annual cycles, postdoctoral and tenure-track appointments run for multiple years, and federally funded research grants are awarded against fixed budgets. Abrupt changes to wage-floor obligations would disrupt commitments institutions have already made to employees, sponsored researchers, and grant-funded projects under the existing framework.
- Alternative wage surveys must be preserved. For more than three decades, CUPA-HR surveys have served as wage sources for higher education employers where government data does not accurately reflect the academic labor market — including the increasingly national, rather than local, wage estimates that data provide for higher education occupations. The comments urge DOL to preserve the existing authority for these surveys in any final rule.
DOL received more than 1,100 comments in response to the proposal and will need to review them all before issuing any final rule. CUPA-HR will continue to monitor developments and keep members informed of any future rulemaking changes as soon as they occur.