EB-3 Visa Reform Could Help Solve Construction Labor Shortage

Employers sponsoring foreign talent must first meet wage and working-condition obligations. That starts with a defensible specialty occupation position, a correct SOC code, and an offered salary that meets the higher of the prevailing wage or actual wage.

Those fundamentals drive H-1B compliance, and they also shape longer-term choices like EB-3 sponsorship when retention matters.

1) Overview: EB-3 Reform Tracks and Goals (and why H-1B employers should care)

“EB-3 Visa Reform” now has two parallel tracks that can affect employer planning, especially in construction and project-based industries. The first track is a DHS/USCIS regulatory overhaul through rulemaking, listed as RIN 1615-AC85.

The second track is Congressional legislation, including the Dignity Act. The regulatory track can change how USCIS evaluates evidence and screens cases. It can move faster than legislation, but it still requires formal steps.

The legislative track can change caps and visa counting rules, but it depends on votes, offsets, and political timing. For employers, timing divergence matters: H-1B remains the primary “hire for October 1” tool for many professional roles.

EB-3 is a longer pathway that can support retention and workforce stability. That is true even when reforms are pending.

📅 Key Date: FY 2027 H-1B employment start is October 1, 2026, with registration typically in early-to-mid March 2026.

2) Official DHS/USCIS Regulatory Actions (2025–2026) and spillover to employer filings

USCIS and DHS change rules through the Administrative Procedure Act. DHS typically publishes a Notice of Proposed Rulemaking (NPRM), accepts public comments, then issues a final rule with an effective date.

Employers and counsel should treat NPRMs as directionally important, but not binding until effective. The listed reform, “Petition for Immigrant Worker Reforms” (RIN 1615-AC85), is framed as modernization for employment-based immigrant petitions.

The themes matter for employers running both H-1B and EB-3 programs. Three themes have direct employer implications and deserve attention as adjudications evolve.

• Ability-to-pay clarification for immigrant cases, which pushes stronger finance documentation and consistent wage records.
• Modernized evidentiary standards, including business models like remote work and startups.
• Integrity measures, including clearer “bona fide job offer” standards and potential site visits.

Even before final rules, adjudications can tighten through RFEs, targeted audits, and more verification. That trend already shows up in H-1B scrutiny, especially for Level I wages, broad job descriptions, and third-party worksites.

The DHS hiring campaign illustrates the scale of the integrity push. DHS publicly referenced a hiring initiative with an application volume that signals more screening capacity. Employers should expect more requests for payroll, work location, and duty-level proof across visa types.

⚠️ Employer Alert: Treat job descriptions, worksite addresses, and wage levels as audit-ready. USCIS and DOL checks often focus on internal consistency across filings.

3) Legislative Context: The Dignity Act of 2025 and why caps mechanics matter

The Dignity Act is a legislative approach that could reshape EB-3 availability for certain construction roles. The core concept discussed is an “accounting fix” for the EB-3 “Other Workers” category, where derivatives can reduce the number of principal workers admitted under the cap.

Caps are mechanical, but the impact is real. When family members count against a category limit, the number of workers admitted can drop sharply. Counting only principals would increase practical worker slots without raising the headline cap number.

The bill also proposes major processing funding for DOL and USCIS. Funding can help staffing and throughput. It cannot quickly remove statutory caps or per-country limits.

Employers should treat legislative timelines as uncertain and avoid staffing plans that assume passage. For H-1B employers, this matters because EB-3 reform can change long-term retention math.

If EB-3 becomes faster or more available, some employers may pair H-1B for near-term start dates with EB-3 for retention.

4) Significance: Construction labor shortage context and compliance pressure

Labor shortage estimates reflect demand, attrition, and growth. Policymakers cite them to justify reforms and enforcement tradeoffs. Employers feel the impact as bid risk, delay risk, and higher wage pressure.

Construction also has more variable worksites. That increases compliance exposure under both H-1B and immigrant programs. Worksite changes, foreman reporting lines, and shifting duties can create document mismatches.

Demographics add a longer-term planning issue. An aging workforce can push more firms toward multi-year sponsorship strategies. That includes EB-3 for stable craft pipelines and H-1B for professionalized functions like project engineering, estimating, scheduling, and safety management.

5) Impact on employers and workers: choosing H-1B now, building EB-3 later

EB-3 can be attractive for retention because it targets permanent residence. It also creates obligations, including PERM wage rules, recruitment records, and job-offer consistency.

Workers should also understand timeline uncertainty and country-based differences. Current EB-3 “Other Workers” timeframes are still measured in years. Some cases can also face enhanced screening that slows predictability.

A recent expansion of a screening-related adjudication pause affected 39 countries. That can complicate travel and start-date planning.

Against that backdrop, many employers still use H-1B as the primary onboarding tool for professional roles. Below is a compliance-first H-1B employer process for FY 2027.

Step-by-step: sponsoring an H-1B worker for FY 2027 (cap-subject)

1. Confirm the job is a specialty occupation. Tie duties to a specific degree field. Avoid “any degree” language.
2. Set the wage and level early. Use the right SOC code and area of intended employment. Level I wages face more scrutiny. DOL wage levels run from Level I (17th percentile) to Level IV (67th percentile).
3. Prepare for the FY 2027 registration in March 2026. Registration is employer-submitted. Under beneficiary-centric selection, one person has one entry, even with multiple sponsors.
4. File the Labor Condition Application (LCA) with DOL. The LCA controls wage, worksite, and working conditions.
5. If selected, file the H-1B petition during the window. Cap filing typically starts April 1. USCIS sets the exact window each year.
6. Plan start date and onboarding. Cap-subject start is October 1, 2026 for FY 2027.

FY 2027 timeline (typical pattern)

LCA requirements employers must follow (wage, conditions, posting)

Prevailing wage and actual wage: You must pay at least the higher of the prevailing wage or your actual wage paid to similarly employed workers. Keep a clear wage memo in the public access file.

Working conditions: The H-1B worker must not negatively affect similarly employed U.S. workers. Benefits must be offered on the same basis.

Posting: Post the LCA notice at the worksite or distribute electronically. Maintain proof of posting and dates. Multi-site employment can require more posting steps or amended filings.

Public Access File (PAF): Keep the LCA, wage rate, wage system explanation, and posting evidence available for inspection. DOL audits often start with PAF gaps.

⚠️ Employer Alert: Worksite moves can trigger an amended H-1B filing. Do not treat address changes as “HR-only” updates.

Required documentation (employer and employee)

From the employer:

• Detailed job description and minimum requirements
• SOC code rationale and wage level rationale
• Offer letter with salary, worksite, and duties
• Company support letter, organizational chart, and manager details
• Financials when needed for credibility in small or new entities
• Client letter and itinerary for third-party placements, when applicable

From the employee:

• Passport biographic page and immigration documents
• Degree certificates, transcripts, and evaluations if needed
• Resume, experience letters, and license evidence if required
• Prior I-797 approvals, I-94 records, and travel history basics

H-1B fee breakdown (employer payment rules matter)

Employer-paid fee rules are a compliance issue. Improper cost-shifting can trigger back-wage exposure and penalties.

Premium processing and timing

Premium processing can shorten USCIS action time, but it does not bypass the cap timeline. It is most useful after selection, when the petition is filed. It can also help travel and onboarding planning when start dates are tight.

Common compliance violations and penalties

• Underpayment versus LCA wage, including benching without pay
• Unreported worksite changes that require an amended filing
• Wrong SOC code or inflated requirements that do not match real duties
• Missing posting proof or incomplete PAF
• Third-party placement gaps, including missing end-client evidence

DOL findings can include back wages, civil money penalties, and debarment risk. USCIS can deny, revoke, or refer fraud concerns.

Employers should start FY 2027 planning in January 2026. Finalize job duties, SOC code, and wage targets before the March registration window.

Employees should verify the role requires their degree field and confirm the salary meets at least the prevailing wage for the worksite. Both parties should plan travel carefully if visa stamping is needed after approval.

Use USCIS cap-season updates for filing windows and program changes.

📋 Official Resources:

• H-1B Program: https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations
• Cap Season: https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-cap-season
• Prevailing Wages: https://flcdatacenter.com