[Federal Register Volume 86, Number 53 (Monday, March 22, 2021)]
[Proposed Rules]
[Pages 15154-15162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05847]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 655 and 656
[Docket No. ETA-2020-0006]
RIN 1205-AC00
Strengthening Wage Protections for the Temporary and Permanent
Employment of Certain Immigrants and Non-Immigrants in the United
States: Proposed Delay of Effective and Transition Dates
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Proposed delay of effective and transition dates; request for
comments.
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SUMMARY: On March 12, 2021, the Department of Labor (Department or DOL)
published a final rule delaying the effective date of the rule entitled
Strengthening Wage Protections for the Temporary and Permanent
Employment of Certain Aliens in the United States (the rule or Final
Rule), published in the Federal Register on January 14, 2021, from
March 15, 2021 until May 14, 2021. This action proposes to further
delay the effective date of the rule by eighteen months or until
November 14, 2022, along with corresponding proposed delays to the
rule's transition dates. This additional delay will provide a
sufficient amount of time to thoroughly consider the legal and policy
issues raised in the rule, and offer the public, through the issuance
of a separate Request for Information, an opportunity to provide
information on the sources and methods for determining prevailing wage
levels covering employment opportunities that United States (U.S.)
employers seek to fill with foreign workers on a permanent or temporary
basis through certain employment-based immigrant visas or through H-1B,
H-1B1, or E-3 nonimmigrant visas. This proposed delay will also provide
agency officials with a sufficient amount of time to compute and
validate prevailing wage data covering specific occupations and
geographic areas, complete and thoroughly test system modifications,
train staff, and conduct public outreach to ensure an effective and
orderly implementation of any revisions to the prevailing wage levels.
DATES: The Department invites written comments on the proposed delayed
effective date and transition dates from interested parties. Written
comments must be received by April 21, 2021.
ADDRESSES: You may submit written comments electronically by the
following method:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions on the website for submitting comments.
Instructions. Include the docket number ETA-2020-0006 in your
comments. All comments received will be posted without change to http://www.regulations.gov. Please do not include any personally identifiable
or confidential business information you do not want publicly
disclosed.
FOR FURTHER INFORMATION CONTACT: 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, telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access
the telephone numbers above via TTY/TDD by calling the toll-free
Federal Information Relay Service at 1 (877) 889-5627.
SUPPLEMENTARY INFORMATION:
I. Background
On January 14, 2021 (86 FR 3608), the Department published a final
rule in the Federal Register, which adopted changes to an interim final
rule (IFR), published on October 8, 2020 (85 FR 63872), that amended
Employment and Training Administration (ETA) regulations governing the
prevailing wages for employment opportunities that U.S. employers seek
to fill with foreign workers on a permanent or temporary basis through
certain employment-based immigrant visas or through H-1B, H-1B1, or E-3
nonimmigrant visas. Specifically, the IFR amended the Department's
regulations governing permanent (PERM) labor certifications and Labor
Condition Applications (LCAs) to incorporate changes to the computation
of wage levels under the Department's four-tiered wage structure based
on the Occupational Employment Statistics (OES) wage survey
administered by the Bureau of Labor Statistics (BLS). A general
overview of the labor certification and prevailing wage process as well
as further background on the rulemaking is available in the
Department's Final Rule, as published in the Federal Register on
January 14, 2021, and will not be restated herein. 86 FR 3608, 3608-
3611.
Although the Final Rule contained an effective date of March 15,
2021, the Department also included two sets of transition periods under
which adjustments to the new wage levels will not begin until July 1,
2021. 86 FR 3608, 3642. For most job opportunities, the transition
would occur in two steps and conclude on July 1, 2022. For job
opportunities that will be filled by workers who are the beneficiary of
an approved Immigrant Petition for Alien Worker, or successor form, or
are eligible for an extension of their H-1B status under sections
106(a) and (b) of the American Competitiveness in the Twenty-first
Century Act of 2000, Public Law 106-313, as amended by the 21st Century
Department of Justice Appropriations Authorization Act, Public Law 107-
273 (2002), the transition would occur in four steps and conclude on
July 1, 2024. 86 FR 3608, 3660.
On February 1, 2021 (86 FR 7656), the Department published a notice
of proposed rulemaking (NPRM) in the Federal Register (60-day NPRM)
proposing to delay the effective date of the Final Rule for 60 days.
The Department based the action on the Presidential directive as
expressed in the memorandum of January 20, 2021, from the Assistant to
the President and Chief of Staff, entitled ``Regulatory Freeze Pending
Review.'' The memorandum directs agencies to consider delaying the
effective date for regulations for the purpose of reviewing
[[Page 15155]]
questions of fact, law, and policy raised therein. In accordance with
the memorandum, the Department proposed to delay the effective date of
the Final Rule from March 15, 2021 until May 14, 2021. Given the
complexity of the regulation, the Department determined that a 60-day
extension of the effective date was necessary to provide time to
consider the relevant legal questions that were raised. In its
proposal, the Department invited written comments on the proposed
delay, specifically the proposed delay's impact on any legal, factual,
or policy issues raised by the underlying rule and whether further
review of those issues warranted such a delay and noted that all other
comments on the underlying rule unrelated to the proposed delay would
be considered outside the scope of the action.
On March 12, 2021, the Department published a final rule (60-day
rule) adopting the proposal and delaying the effective date of the
underlying rule to May 14, 2021. 86 FR 13995.
II. Basis for Proposed Delay of Effective and Transition Dates
The Department is now proposing to delay the effective date of May
14, 2021, and the transition date of July 1, 2021, under which
adjustments to the new wage levels would begin, for a period of
eighteen months, or until November 14, 2022 and January 1, 2023,
respectively. In addition, the Department proposes corresponding one-
year delays for each of the remaining transition dates, which would be
revised to January 1, 2024, January 1, 2025, and January 1, 2026,
respectively. The Department is proposing this delay for several
reasons, as discussed in turn below.
First, the Department is proposing this delay so that it has
sufficient time to engage in its comprehensive review of the Final
Rule, and to take further action as needed to complete this review.
Many comments on the 60-day NPRM raised substantive and procedural
concerns regarding the underlying rulemaking. Some commenters raised
concerns, for example, over the lack of a proper notice and comment
period for the public to comment on provisions in the Final Rule,
including the transition date provisions, and the Department's failure
to make available technical studies and data it employed in reaching
decisions in that rule. Commenters believed the Final Rule did not
adequately consider and respond to issues raised by public comments to
the IFR, including the methodology employed by the Department, and that
the Department had allegedly ignored data and information contrary to
its position. This led to broader concerns that the Department did not
fully consider available data. These concerns call into question the
appropriateness of the wage rates established in the Final Rule,
including the transition rates currently scheduled to take effect on
July 1, 2021. For example, assuming that the commenters are correct and
that the public was not provided a full and complete opportunity to
comment on the transition provisions then the Department did not have
the benefit of receiving and considering comments that could have
caused it to adopt longer or shorter transition periods, higher or
lower transition rates, or to ultimately not include transition
provisions in the rule. Commenters also noted that sources of authority
cited as a basis for the rulemaking, or for key assumptions in the
rulemaking, have since been revoked or rescinded, such as Executive
Order (E.O.) 13788 (Buy American and Hire American).
Many of these same concerns have been raised in the ongoing
litigation concerning the IFR and the Final Rule. 86 FR 3608, 3612
(discussing lawsuits and court orders setting aside the IFR). For
example, plaintiffs have recently raised claims in the pending
litigation that the Final Rule's adjustments to the IFR ``stem from
undisclosed data and analyses that DOL failed to place on the public
rulemaking docket.'' First Amended Complaint at ] 89, Stellar IT, et
al. v. Stewart, et al., No. 20-cv-3175 (Feb. 26, 2021); see also First
Amended Complaint at ] 147, Purdue University, et al. v. Stewart, et
al., No. 20-cv-3006 (Feb. 19, 2021) (``The agency also failed to
provide the public with advance notice of the technical studies and
data underlying its decision, including the data from the National
Science Foundation, and, the methodology and technical studies it did
reveal, prevented the public with a meaningful opportunity to comment
and adequately engage in the rulemaking process.''). The Department's
ongoing review of the Final Rule has also identified potential issues
surrounding the rulemaking record. See, e.g., Unopposed Motion to
Extend Defendants' Time to Respond to the Amended Complaint, Stellar
IT, et al. v. Stewart, et al., No. 20-cv-3175 (Mar. 9, 2021).
Accordingly, the Department believes this proposed delay, in
conjunction with the additional actions discussed below, will best
inform the Department's comprehensive review of the Final Rule and
consideration of alternate paths, and provide it a meaningful
opportunity to do so, particularly given the uncertainty inherent in
continued litigation.
Moreover, other commenters suggested approaches that the Department
should take as it reviews this rulemaking. For example, one commenter
not only recommended that the Department conduct a full legal review
and consider and respond to previously submitted comments, but that it
also explore ways to ensure that wages reflect different types of
common compensation structures, noting that many employers compensate
their professional employees through a combination of base wages,
bonuses, and other benefits. Another commenter suggested the Department
do due diligence in research, data collection and analysis.
The Department is committed to conducting a thorough and
transparent review of this rulemaking. Based on the Department's review
to date, additional time is needed to comprehensively review the record
relied upon to support this rulemaking before it is allowed to take
effect, including litigants' claims that the Department's failure to
publicly disclose certain data and analysis relied upon to establish
the new wage levels will otherwise result in wages that, contrary to
the Final Rule's conclusions, do not ``accurately reflect[ ] the
portion of the OES distribution where workers with levels of education,
experience, and responsibility similar to the vast run of entry-level
H-1B and PERM workers likely fall.'' 86 FR 3608, 3639. In light of
these claims and the comments received on the 60-day NPRM, which
highlight very serious concerns with the substance of the Final Rule
and the process through which it was promulgated, the Department
believes additional action is needed and intends, through the issuance
of a separate request for information (RFI), to solicit public input on
other sources of data and/or methodologies to inform any potential new
proposal(s) to amend its regulations governing prevailing wages for
PERM, H-1B, H-1B1, and E-3 job opportunities. While the Department
undertakes this review and solicits additional public input, it
proposes to delay implementation of the revisions to the prevailing
wage levels until it may determine they appropriately reflect the wages
of workers in the United States similarly employed. The Department has
considered allowing the rule to take effect pending its review and the
assessment of potential new rulemaking; however, the Department thinks
the concerns discussed above call into question fundamental aspects of
the rulemaking to such a degree that the
[[Page 15156]]
fairest and most prudent approach is to propose this delay rather than
allow the rule to take effect without seeking additional public input.
Second, and relatedly, the Department preliminarily believes that
delaying the effective and transition dates, as proposed herein, will
prevent confusion and uncertainty among the regulated community over
the operative wage rates while the Department conducts its review. For
example, a university commenter to the 60-day NPRM observed that the
transition dates are confusing and complicated for employers who must
ensure they are using the right set of prevailing wage data and
maintaining accurate public inspection files depending on when their
documentation is filed. Delaying the effective and transition dates of
this rule while the Department undertakes its review, instead of
allowing these dates to be implemented, will prevent this unnecessary
confusion and uncertainty.
Third, this delay will allow BLS and ETA's Office of Foreign Labor
Certification (OFLC) adequate time to compute and validate prevailing
wage data covering all occupations and geographic areas, complete and
thoroughly test modifications to the OFLC Foreign Labor Application
Gateway (FLAG) system, train staff, and conduct sufficient public
outreach to ensure an effective and orderly implementation by the time
the initial transition wage rates become effective. Even after the
Department has completed its review of this rule, BLS and OFLC will
need sufficient time to plan and implement any changes associated with
the computation of wage levels under the Department's four-tiered wage
structure.
Specifically, under a Memorandum of Understanding (MOU), changes to
the computation of prevailing wages for Levels I and IV, data
categories, or other specific terms must be agreed to by OFLC and BLS
six months in advance of the deliverable date.\1\ In addition to
prevailing wages for occupations covered by all industries, BLS must
produce a separate set of prevailing wages for occupations in
institutions of higher education, related or affiliated nonprofit
entity, nonprofit research organization, or governmental research
agency. Once the initial wage estimation process is completed, BLS then
creates prevailing wage estimates for specific occupations and
geographic areas, and transmits the files to each State for validation
and confidentiality review, since the actual collection of occupational
wage data from employer establishments is conducted by the States.
After addressing any corrections or errors and receiving confirmation
from the States, BLS creates the final prevailing wage estimates and
applies any suppression or confidentiality rules. These final
prevailing wage estimates undergo a rigorous internal review by BLS
economists and statisticians who then deliver to OFLC the final set of
prevailing wages for Levels I and IV for specific occupations and
geographic areas.
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\1\ Amended Memorandum of Understanding executed by Mr. John
Pallasch, Assistant Secretary, ETA, and Mr. William W. Beach,
Commissioner, BLS (January 13, 2021).
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When the IFR was published, the necessary time was not provided to
ensure the proper testing and implementation of the new methodology for
computing the wage levels, which meant BLS and OFLC were unable to
follow the implementation process described above. As a result, the
wages produced by BLS yielded significant anomalies and far more
instances where BLS was unable to provide a leveled wage than would
typically occur. Had BLS and OFLC had sufficient time to implement the
new methodology, the prevalence of these anomalies and absence of
leveled wages could have been identified prior to implementation and
steps could have been taken to proactively address those issues. To
avoid similar issues in the future, it is critical that BLS and OFLC
have sufficient time to implement the wage methodology in the Final
Rule should the Department allow it to take effect.
Specifically, after receiving the final prevailing wages for Levels
I and IV, OFLC will need approximately one month to compute and review
initial prevailing wage estimates for the two intermediate levels
according to the mathematical formula identified in the statute. Once
validated for accuracy, OFLC must then load and thoroughly test
integration of the final prevailing wage data into its online Foreign
Labor Certification Data Center system, accessible at http://www.flcdatacenter.com, as well as the FLAG system used to assign the
leveled prevailing wages and issue official PWDs for each occupation
and geographic area to employers. The final process for OFLC to load,
thoroughly test, and implement the official prevailing wage data takes
up to an additional one month. The lengthy delay proposed in this
action affords BLS and OFLC the opportunity to complete these necessary
actions upon completion of the Department's review of this rule should
it decide to implement the Final Rule as published.
To the extent employers and beneficiaries may have taken some
preparatory steps to conform to the Final Rule, the Department believes
such actions, if any, are limited given the short amount of time that
has passed since the rule was published on January 14, 2021 and the
publication of the 60-day NPRM on February 1, 2021. In addition, the
Department believes such reliance interests do not outweigh the need
for the Department to propose this delay. As indicated above, the
issues raised by commenters to the 60-day NPRM and by parties in the
related litigation cast serious concern over the Final Rule's
determination on the prevailing wage levels needed to prevent adverse
effect. Based on the concerns raised by these commenters and litigants,
the Department believes it is imperative that it evaluate these
concerns and, prior to implementing the Final Rule, evaluate whether
new rulemaking is warranted to address these concerns such that the
Department properly fulfills its mandate to prevent adverse effect. As
part of this effort, the Department proposes this 18-month delay of the
Final Rule's effective date of May 14, 2021, and transition date of
July 1, 2021, respectively, and proposes corresponding one-year delays
for subsequent transition dates.
The Department acknowledges that delaying the implementation of the
Final Rule is likely to have an impact on the wages paid to workers, as
some commenters on the 60-day NPRM suggested. However, commenters have
also indicated that the Final Rule would negatively impact workers in
other ways. Commenters stated, for example, that the Final Rule would
lead to an increase in companies outsourcing jobs, the potential
bankruptcy of small businesses, and an inability to fill positions with
qualified workers that would result in slower or incomplete research
and development. In addition, implementing the Final Rule and
subsequently amending the rule, if the Department determines that
revisions are necessary, would lead to multiple changes to the wage
structure over a short period of time and pose significant logistical
challenges for FLS and OFLC to conduct the necessary testing and
analysis to ensure an efficient and orderly implementation of
prevailing wage updates. Consistent with comments received on the 60-
day NPRM recommending the Department consider a further delay of the
Final Rule's effective to avoid operational and logistical problems for
stakeholders and the filing community, the proposed
[[Page 15157]]
delay of the effective and transition dates would also prevent needless
fluctuations in wages and unnecessary burdens imposed on employers as
the Department conducts its review of the Final Rule. Lastly, given the
uncertainty inherent in continued litigation, including uncertainty
over the outcome and remedy should the Department receive an adverse
decision, as well as the timing thereof, the Department's proposed
delay will also limit the potential for significant disruptions to both
BLS and OFLC processes and prevent confusion and uncertainty among the
regulated community over the operative wage rates while the Department
conducts its review. Therefore, the Department believes that the
prudent and reasonable approach is to propose to delay the effective
date, and thus the implementation of the Final Rule while it undertakes
its review.
While the Department acknowledges that the proposed delay is
significant, based on its initial review and given the concerns
described above, it is clear that a significant amount of time is
necessary to consider all aspects of this rulemaking, including the
underlying methodology employed, and relevant studies and data. To that
end, the Department intends, through the issuance of a separate RFI, to
solicit public input on other sources of data and/or methodologies to
inform any potential new proposal(s) to amend its regulations governing
prevailing wages for PERM, H-1B, H-1B1, and E-3 job opportunities. This
proposed delay will allow the Department sufficient time to evaluate
commenters' concerns, consider other regulatory actions (such as the
RFI or additional rulemaking) and carefully review the comments that
are submitted in response. It will also afford BLS and OFLC adequate
time of at least eight months to implement changes to the prevailing
wage structure should the Department decide to implement the Final Rule
as published.
The Department seeks public comment on the proposed delay,
including whether it should delay the effective date and the transition
dates of the Final Rule and whether the proposed period of delay is an
appropriate length of time or whether other lengths of time may be more
appropriate. The Department specifically seeks comment on whether,
rather than delaying implementation as proposed herein, the Department
should allow the rule, and any accompanying transition dates, to take
effect while it conducts its review and considers any new proposal(s)
to amend the regulations in question. The Department asks commenters to
provide specific details and any available data regarding the specific
challenges they face in complying with the Final Rule by the current
transition date of July 1, 2021. The Department also invites the public
to share any relevant knowledge and specific facts about any benefits,
costs, or other impacts of this proposal on the regulated community,
workers, and other relevant stakeholders. Lastly, the Department
solicits comment on any other potential consequences of not delaying
the effective date and transition dates of the Final Rule. All comments
on the underlying rulemaking will be considered to be outside the scope
of this rulemaking.
III. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
Under E.O. 12866, the Office of Management and Budget's (OMB)
Office of Information and Regulatory Affairs (OIRA) determines whether
a regulatory action is significant and, therefore, subject to the
requirements of the E.O. and review by OMB. 58 FR 51735. Section 3(f)
of E.O. 12866 defines a ``significant regulatory action'' as an action
that is likely to result in a rule that: (1) Has an annual effect on
the economy of $100 million or more, or adversely affects in a material
way a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities (also referred to as economically
significant); (2) creates serious inconsistency or otherwise interferes
with an action taken or planned by another agency; (3) materially
alters the budgetary impacts of entitlement grants, user fees, or loan
programs, or the rights and obligations of recipients thereof; or (4)
raises novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the E.O. Id.
Pursuant to E.O. 12866, OIRA has determined that this is an
economically significant regulatory action. Pursuant to the
Congressional Review Act (5 U.S.C. 801 et seq.), OIRA has designated
that this rule is a ``major rule,'' as defined by 5 U.S.C. 804(2).
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and qualitatively discuss
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
The Final Rule \2\ updated the computation of wage levels under the
Department's four-tiered wage structure based on the OES wage survey
administered by BLS. The Final Rule also included a transition period
under which the revised Level I-IV wages were adjusted over time to
final wage levels. To calculate the Final Rule's transfer payments from
employers to employees, the Department simulated wage impacts for
historical certification data based on the Final Rule's Level I-IV wage
percentiles for each transition group (85, 90, 95, and 100 percent of
the final Level I-IV wage levels). The Department then used the
simulated wage impacts for each transition group, to construct a 10-
year series of annual total wage impacts (transfers from employers to
employees). More details on the wage computations and methodology used
to calculate transfer payments are available in the Department's Final
Rule.
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\2\ The Final Rule was published in the Federal Register on
January 14, 2021. 86 FR 3608, 3608-3611.
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The Final Rule transition period allowed foreign workers and their
employers time to adapt to the new wage rates. For most job
opportunities, the Final Rule transition followed two steps with a
delayed implementation period, concluding on July 1, 2022. For these
jobs, current wage levels would be in effect from January 1, 2021
through June 30, 2021. From July 1, 2021 through June 30, 2022 the
prevailing wage would be 90 percent of the final wage level. From July
1, 2022 and onward the prevailing wage would be the final wage level.
Job opportunities in the four-step transition group had a delayed
implementation period, with a transition to final wage levels
concluding on July 1, 2024. For these jobs the baseline wage levels
would be in effect from January 1, 2021 through June 30, 2021. From
July 1, 2021 through June 30, 2022 the prevailing wage would be 85
percent of the final wage levels; from July 1, 2022 through June 30,
2023 the prevailing wage would be 90 percent of the final wage levels;
from July 1, 2023 through June 30 2024 the prevailing wage would be 95
percent of the final wage levels; and
[[Page 15158]]
from July 1, 2024 onwards the prevailing wage would be the final wage
levels.
The Department is now proposing to delay the effective date of May
14, 2021, and the transition date of July 1, 2021, under which
adjustments to the new wage levels would begin, for a period of
eighteen months, or until November 14, 2022 and January 1, 2023,
respectively. In addition, the Department proposes corresponding one-
year delays for each of the remaining transition dates, which would be
revised to January 1, 2024, January 1, 2025, and January 1, 2026,
respectively. The Department is proposing this delay for three primary
reasons: (1) To allow the Department to have sufficient time to engage
in its comprehensive review of the Final Rule; (2) to prevent confusion
and uncertainty among the regulated community over the operative wage
rates while the Department conducts its review; and (3) because BLS and
OFLC will not have adequate time to compute and validate prevailing
wage data covering all occupations and geographic areas, complete and
thoroughly test modifications to the OFLC FLAG system, train staff, and
conduct sufficient public outreach to ensure an effective and orderly
implementation by the time the initial transition wage rates become
effective on July 1, 2021.
Under the proposed rule, current wage levels would be in effect
through December 31, 2022, and wage impacts estimated in the Final Rule
will not begin until January 1, 2023. For the two-step transition, the
current wage levels will be in effect through December 31, 2022, and
from January 1, 2023 through December 31, 2023 the prevailing wage will
be 90 percent of the final wage level. From January 1, 2024 and onward
the prevailing wage will be the final wage level. For the four-step
transition the current wage levels will be in effect through December
31, 2022. From January 1, 2023 through December 31, 2023, the
prevailing wage will be 85 percent of the final wage levels; from
January 1, 2024 through December 21, 2024, the prevailing wage will be
90 percent of the final wage levels; from January 1, 2025 through
December 21, 2025, the prevailing wage will be 95 percent of the final
wage levels; and from January 1, 2026 onwards the prevailing wage will
be the final wage levels.
The proposed rule's delay in effective date will result in the
reduction of transfer payments in the form of higher wages from
employers to H-1B employees. Additionally, the proposed rule would
delay the potential for deadweight losses to occur in the event that
requiring employers to pay a wage above what H-1B workers are willing
to accept results in H-1B caps not to be met. The Department has
observed that the annual H-1B cap was reached within the first five
business days each year from FY 2014 through FY 2020. While the
Department expects that the increase in wages may incentivize some
employers to substitute domestic workers for H-1B employees, provided
that domestic workers are available for the jobs, it is likely that the
same number of H-1B visas will be allotted within the annual caps in
the future.To calculate the reduction of transfer payments the
Department considered the transfer payments of the Final Rule as the
baseline and shifted them according to the proposed rule's new
transition effective dates. To shift transfer payments the Department
used the average annual wage impacts from Exhibit 7 in the Final Rule's
E.O. 12866 section and applied them to the proposed rule transition
period. Exhibit 1, below, presents the revised wage transition schedule
under the two groups.
Exhibit 1--Proposed Rule Wage Transition for the Two Application Groups
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Wage transition
Year -------------------------------------------------------------------------
Two-step Four-step
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2021.................................. Baseline........................... Baseline.
2022.................................. Baseline........................... Baseline.
2023.................................. 90%................................ 85%.
2024.................................. Final Wage Level................... 90%.
2025.................................. Final Wage Level................... 95%.
2026-2030............................. Final Wage Level................... Final Wage Level.
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* Beginning January 1, 2026, the transitions are both complete and all workers are at the final wage level.
The shift in the transition schedule results in the annual transfer
payments presented in Exhibit 2, below. To see total transfer payments
in the Final Rule, refer to Exhibit 10 of the Final Rule.
Exhibit 2--Shifted Transfer Payments of the Final Rule
[2019$ millions]
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<1 1-2 Years 2-3 Years
Cohort: ---------------------------------------------------------------------------------------------------------------- Total
New Continuing New Continuing New Continuing Continuing 3+
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2021............................................................ $0 $0 $0 $0 $0 $0 $0 $0
2022............................................................ 0 0 0 0 0 0 0 0
2023............................................................ 9 0 31 0 960 0 0 1,000
2024............................................................ 20 5 39 69 2,529 876 0 3,538
2025............................................................ 20 11 77 168 2,622 5,065 2,838 10,801
2026............................................................ 28 11 111 178 3,772 5,251 7,474 16,824
2027............................................................ 28 15 111 244 3,772 7,553 7,749 19,472
2028............................................................ 28 15 111 244 3,772 7,553 11,150 22,872
2029............................................................ 28 15 111 244 3,772 7,553 11,150 22,872
2030............................................................ 28 15 111 244 3,772 7,553 11,150 22,872
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10-year Total............................................... 188 90 700 1,391 24,972 41,403 51,510 120,253
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[[Page 15159]]
The Department expects that the proposed rule's delay in effective
date will result in savings to employers (and a reduction in wages to
employees) represented by the reduction of transfer payments (wages)
from employers to employees. The Department calculates the proposed
rule's reduced transfer payments by differencing the shifted transfer
payments in Exhibit 2 from the Final Rule's transfer payments (Exhibit
10 of the Final Rule). The Department estimates the total reduction of
transfer payments over the 10-year period is $32.05 billion and $28.19
billion at discount rates of 3 and 7 percent, respectively. The
Department estimates annualized reduced transfer payments of $3.76
billion and $4.01 billion at discount rates of 3 and 7 percent,
respectively. Exhibit 3, below, presents the total transfer payments of
the Final Rule, the shifted transfer payments resulting from the
proposed rule delay, and the resulting reduction of transfer payments
by the proposed rule.\3\
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\3\ Delayed transfer payments under the proposed rule are
approximately the Final Rule transfer payments shifted by two years.
They are not exactly shifted because the transition period under the
Final Rule resulted in each wage level of the transition occurring
for half a year rather than a full year due to the Final Rule
transition occurring on a July 1st to June 30th basis rather than a
calendar year basis as under the proposed rule.
Exhibit 3--Total Transfer Payments of the NPRM
[2019$ millions]
----------------------------------------------------------------------------------------------------------------
Proposed rule
Year Final rule transfer Shifted final rule reduction of
payments transfer payments transfer payments
----------------------------------------------------------------------------------------------------------------
2021.......................................... $416 $0 $416
2022.......................................... 2,368 0 2,368
2023.......................................... 7,026 1,000 6,026
2024.......................................... 13,542 3,538 10,005
2025.......................................... 18,964 10,801 8,163
2026.......................................... 21,924 16,824 5,100
2027.......................................... 22,872 19,472 3,400
2028.......................................... 22,872 22,872 0
2029.......................................... 22,872 22,872 0
2030.......................................... 22,872 22,872 0
10-Year Total Undiscounted.................... 155,730 120,253 35,477
10-Year Total with a Discount Rate of 3%...... 130,830 98,781 32,049
10-Year Total with a Discount Rate of 7%...... 105,157 76,969 28,188
Annualized Undiscounted....................... 15,573 12,025 3,548
Annualized at a Discount Rate of 3%........... 15,337 11,580 3,757
Annualized at a Discount Rate of 7%........... 14,972 10,959 4,013
----------------------------------------------------------------------------------------------------------------
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies
engaged in rulemaking to consider the impact of their proposals on
small entities, consider alternatives to minimize that impact, and
solicit public comment on their analyses. The RFA requires the
assessment of the impact of a regulation on a wide range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions. Agencies must perform a review to
determine whether a proposed or final rule would have a significant
economic impact on a substantial number of small entities. 5 U.S.C.
603, 604. If the determination is that it would, the agency must
prepare a regulatory flexibility analysis as described in the RFA. Id.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, the RFA provides that the head of the agency
may so certify and a regulatory flexibility analysis is not required.
See 5 U.S.C. 605. The certification must include a statement providing
the factual basis for this determination, and the reasoning should be
clear.
The Department believes that this proposed rule will have a
significant economic impact on a substantial number of small entities
and is therefore publishing this Initial Regulatory Flexibility
Analysis as required.
1. Why the Department Is Considering Action
The Department is proposing to delay the effective date of the
Final Rule for three primary reasons: (1) To allow the Department to
have sufficient time to engage in its comprehensive review of the Final
Rule; (2) to prevent confusion and uncertainty among the regulated
community over the operative wage rates while the Department conducts
its review; and (3) because BLS and OFLC will not have adequate time to
compute and validate prevailing wage data covering all occupations and
geographic areas, complete and thoroughly test modifications to the
OFLC FLAG system, train staff, and conduct sufficient public outreach
to ensure an effective and orderly implementation by the time the
initial transition wage rates become effective on July 1, 2021.
2. Objectives of and Legal Basis for the Proposed Rule
The Department is now proposing to delay the effective date of May
14, 2021, and the transition date of July 1, 2021, under which
adjustments to the new wage levels would begin, for a period of
eighteen months, or until November 14, 2022 and January 1, 2023,
respectively. In addition, the Department proposes corresponding one-
year delays for each of the remaining transitions dates, which would be
revised to January 1, 2024, January 1, 2025, and January 1, 2026,
respectively.
The Immigration and Nationality Act, as amended, assigns certain
responsibilities to the Secretary of Labor (Secretary) relating to
wages and working conditions of certain categories of employment-based
immigrants and nonimmigrants. This proposed rule relates to the labor
certifications that the Secretary issues for certain employment-based
immigrants and to the LCAs that the Secretary certifies in connection
with the temporary employment of foreign workers under
[[Page 15160]]
the H-1B, H-1B1, and E-3 visa classifications. See 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)(b), 1101(a)(15)(H)(i)(b1),
1182(a)(5), 1182(n), 1182(t)(1), 1184(c).
3. Number of Small Entities Affected by the Proposed Rule
The proposed rule does not change the number of impacted small
entities. A summary of impacted small entities can be found in Exhibit
13 of the Final Rule's RFA section.
4. Compliance Requirements of the Proposed Rule, Including Reporting
and Recordkeeping
The proposed rule does not have any reporting, recordkeeping, or
other compliance requirements impacting small entities. The Department
expects that the proposed change will result in savings to employees
represented by transfer payments from employees to employers due to the
proposed rule's delay in effective date.
5. Calculating the Impact of the Proposed Rule on Small Entities
The small entity impacts are unchanged in magnitude from Exhibit 14
in the Final Rule's RFA section. However, under the proposed rule the
small entity impacts represent wage savings to small businesses
relative to the Final Rule because of the delayed transition period.
The Department estimates that wage savings from the delayed transition
will occur between 2021 and 2027 as presented in the E.O. 12866 section
of the proposed rule. The Department estimates that small entity
savings as a proportion of total revenue will be equivalent in
magnitude to the cost impacts as a proportion of total revenue
estimated in Exhibit 15 in the Final Rule's RFA section. Therefore, the
Department estimates that the proposed rule will have a significant
economic impact on a substantial number of small entities.
6. Relevant Federal Rules Duplicating, Overlapping, or Conflicting With
the Proposed Rule
The Department is not aware of any relevant Federal rules that
conflict with this proposed rule.
7. Alternative to the Proposed Rule
The RFA directs agencies to assess the impacts that various
regulatory alternatives would have on small entities and to consider
ways to minimize those impacts. The proposed rule results in wage
savings to small entities and therefore has a beneficial impact on
small entities. The Department invites public comments on alternatives
to the proposed rule that would further benefit entities while
remaining consistent with the objectives of the proposed rule.
C. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in a $100 million or more expenditure (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector. The inflation-
adjusted value equivalent of $100 million in 1995 adjusted for
inflation to 2019 levels by the Consumer Price Index for All Urban
Consumers (CPI-U) is approximately $168 million based on the Consumer
Price Index for All Urban Consumers.\4\
---------------------------------------------------------------------------
\4\ See U.S. Bureau of Labor Statistics, Historical Consumer
Price Index for All Urban Consumers (CPI-U): U.S. City Average, All
Items, available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202003.pdf (last visited June 2, 2020).
Calculation of inflation: (1) Calculate the average monthly CPI-
U for the reference year (1995) and the current year (2019); (2)
Subtract reference year CPI-U from current year CPI-U; (3) Divide
the difference of the reference year CPI-U and current year CPI-U by
the reference year CPI-U; (4) Multiply by 100 = [(Average monthly
CPI-U for 2019--Average monthly CPI-U for 1995)/(Average monthly
CPI-U for 1995)] * 100 = [(255.657-152.383)/152.383] * 100 =
(103.274/152.383) *100 = 0.6777 * 100 = 67.77 percent = 68 percent
(rounded). Calculation of inflation-adjusted value: $100 million in
1995 dollars * 1.68 = $168 million in 2019 dollars.
---------------------------------------------------------------------------
While this proposed rule may result in the expenditure of more than
$100 million by the private sector annually, the rulemaking is not a
``Federal mandate'' as defined for UMRA purposes.\5\ The cost of
obtaining prevailing wages, preparing labor condition and certification
applications (including all required evidence) and the payment of wages
by employers is, to the extent it could be termed an enforceable duty,
one that arises from participation in a voluntary Federal program
applying for immigration status in the United States.\6\ This proposed
rule does not contain a mandate. The requirements of Title II of UMRA,
therefore, do not apply, and DOL has not prepared a statement under
UMRA. Therefore, no actions were deemed necessary under the provisions
of the UMRA.
---------------------------------------------------------------------------
\5\ See 2 U.S.C. 658(6).
\6\ See 2 U.S.C. 658(7)(A)(ii).
---------------------------------------------------------------------------
D. Congressional Review Act
OIRA has determined that this proposed rule is a major rule as
defined by 5 U.S.C. 804, also known as the ``Congressional Review
Act,'' as enacted in section 251 of the Small Business Regulatory
Enforcement Fairness Act of 1996, Public Law 104-121, 110 Stat. 847,
868, et seq.
E. Executive Order 13132 (Federalism)
This proposed rule would not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of E.O. 13132, it is determined that this proposed rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988.
G. Regulatory Flexibility Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments)
This proposed rule does not have ``tribal implications'' because it
does not have substantial direct effects on one or more Indian tribes,
on the relationship between the Federal Government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian tribes. Accordingly, E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, requires
no further agency action or analysis.
H. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501, et seq.,
and its attendant regulations, 5 CFR part 1320, require the Department
to consider the agency's need for its information collections and their
practical utility, the impact of paperwork and other information
collection burdens imposed on the public, and how to minimize those
burdens. This proposed rule does not require a collection of
information subject to approval by OMB under the PRA, or affect any
existing collections of information.
List of Subjects in 20 CFR Part 656
Administrative practice and procedure, Employment, Foreign workers,
Labor, Wages.
[[Page 15161]]
DEPARTMENT OF LABOR
Accordingly, for the reasons stated in the preamble, the Department
of Labor proposes to amend part 656 of chapter V, title 20, Code of
Federal Regulations, as follows:
PART 656--LABOR CERTIFICATION PROCESS FOR PERMANENT EMPLOYMENT OF
ALIENS IN THE UNITED STATES
0
1. The authority citation for part 656 is revised to read as follows:
Authority: 8 U.S.C. 1182(a)(5)(A), 1182(p); sec.122, Pub. L.
101-649, 109 Stat. 4978 (8 U.S.C. 1182 note); and Title IV, Pub. L.
105-277, 112 Stat. 2681 (8 U.S.C. 1182 note).
0
2. Amend Sec. 656.40 by revising paragraphs (a) and (b)(2) and (3) to
read as follows:
Sec. 656.40 Determination of prevailing wage for labor certification
purposes.
(a) Application process. The employer must request a PWD from the
NPC, on a form or in a manner prescribed by OFLC. The NPC shall receive
and process prevailing wage determination requests in accordance with
this section and with Department guidance. The NPC will provide the
employer with an appropriate prevailing wage rate. The NPC shall
determine the wage in accordance with sec. 212(p) of the INA. Unless
the employer chooses to appeal the center's PWD under Sec. 656.41(a),
it files the Application for Permanent Employment Certification either
electronically or by mail with the processing center of jurisdiction
and maintains the PWD in its files. The determination shall be
submitted to the CO, if requested.
(b) * * *
(2) If the job opportunity is not covered by a CBA, the prevailing
wage for labor certification purposes shall be based on the wages of
workers similarly employed using the wage component of the Bureau of
Labor Statistics (BLS) Occupational Employment Statistics Survey (OES)
in accordance with paragraph (b)(2)(i) of this section, unless the
employer provides an acceptable survey under paragraphs (b)(3) and (g)
of this section or elects to utilize a wage permitted under paragraph
(b)(4) of this section.
(i) The BLS shall provide the OFLC Administrator with the OES wage
data by occupational classification and geographic area, which is
computed and assigned at levels set commensurate with the education,
experience, and level of supervision of similarly employed workers, as
determined by the Department.
(ii) Except as provided under paragraph (b)(2)(iii) of this
section, the prevailing wage shall be provided by the OFLC
Administrator at the following four levels:
(A) The Level I Wage shall be computed as the 35th percentile of
the OES wage distribution and assigned for the most specific occupation
and geographic area available.
(B) The Level II Wage shall be determined by first dividing the
difference between Levels I and IV by three and then adding the
quotient to the computed value for Level I and assigned for the most
specific occupation and geographic area available.
(C) The Level III Wage shall be determined by first dividing the
difference between Levels I and IV by three and then subtracting the
quotient from the computed value for Level IV and assigned for the most
specific occupation and geographic area available.
(D) The Level IV Wage shall be computed as the 90th percentile of
the OES wage distribution and assigned for the most specific occupation
and geographic area available. Where the Level IV Wage cannot be
computed due to wage values exceeding the uppermost interval of the OES
wage interval methodology, the OFLC Administrator shall determine the
Level IV Wage using the current hourly wage rate applicable to the
highest OES wage interval for the specific occupation and geographic
area, or the arithmetic mean of the wages of all workers for the most
specific occupation and geographic area available, whichever is
highest.
(iii) Transition wage rates are as follows:
(A) For the period from [effective date of final rule] through
December 31, 2022, the prevailing wage shall be provided by the OFLC
Administrator at the following four levels:
(1) The Level I Wage shall be computed as the arithmetic mean of
the lower one-third of the OES wage distribution and assigned for the
most specific occupation and geographic area available.
(2) The Level IV Wage shall be computed as the arithmetic mean of
the upper two-thirds of the OES wage distribution and assigned for the
most specific occupation and geographic area available.
(3) The Level II Wage and Level III Wage shall be determined by
applying the formulae provided in paragraphs (b)(2)(ii)(B) and (C) of
this section to the Level I and Level IV values in paragraphs
(b)(2)(iii)(A)(1) and (2) of this section.
(B) For the period from January 1, 2023, through December 31, 2023,
the prevailing wage shall be provided by the OFLC Administrator at the
following four levels:
(1) The Level I Wage shall be 90 percent of the wage provided under
paragraph (b)(2)(ii)(A) of this section, or the wage provided under
paragraph (b)(2)(iii)(A)(1) of this section, whichever is higher.
(2) The Level IV Wage shall be 90 percent of the wage provided
under paragraph (b)(2)(ii)(D) of this section, or the wage provided
under paragraph (b)(2)(iii)(A)(2) of this section, whichever is higher.
(3) The Level II Wage and Level III Wage shall be determined by
applying the formulae provided in paragraphs (b)(2)(ii)(B) and (C) of
this section to the wages established under paragraphs
(b)(2)(iii)(B)(1) and (3) of this section.
(C) Notwithstanding any other provision of this section, if the
employer submitting the Form ETA-9035/9035E, Labor Condition
Application for Nonimmigrant Workers and, as applicable, the Form ETA-
9141, Application for Prevailing Wage Determination, will employ an H-
1B nonimmigrant in the job opportunity subject to the Labor Condition
Application for Nonimmigrant Workers who was, as of October 8, 2020,
the beneficiary of an approved Immigrant Petition for Alien Worker, or
successor form, or is eligible for an extension of his or her H-1B
status under sections 106(a) and (b) of the American Competitiveness in
the Twenty-First Century Act of 2000 (AC21), Public Law 106-313, as
amended by the 21st Century Department of Justice Appropriations
Authorization Act, Public Law 107-273 (2002), and the H-1B nonimmigrant
is eligible to be granted immigrant status but for application of the
per country limitations applicable to immigrants under paragraphs
203(b)(1), (2), and (3) of the INA, or remains eligible for an
extension of the H-1B status at the time the Labor Condition
Application for Nonimmigrant Workers is filed:
(1) For the period from January 1, 2023, through December 31, 2023,
the prevailing wage shall be provided by the OFLC Administrator at the
following four levels:
(i) The Level I Wage shall be 85 percent of the wage provided under
paragraph (b)(2)(ii)(A) of this section, or the wage provided under
paragraph (b)(2)(iii)(A)(1) of this section, whichever is higher.
(ii) The Level IV Wage shall be 85 percent of the wage provided
under paragraph (b)(2)(ii)(D) of this section, or
[[Page 15162]]
the wage provided under paragraph (b)(2)(iii)(A)(2) of this section,
whichever is higher.
(iii) The Level II Wage and Level III Wage shall be determined by
applying the formulae provided in paragraphs (b)(2)(ii)(B) and (C) of
this section to the wages established under paragraphs
(b)(2)(iii)(C)(1)(i) and (ii) of this section.
(2) For the period from January 1, 2024, through December 31, 2024,
the prevailing wage shall be provided by the OFLC Administrator at the
following four levels:
(i) The Level I Wage shall be 90 percent of the wage provided under
paragraph (b)(2)(ii)(A) of this section, or the wage provided under
paragraph (b)(2)(iii)(C)(1)(i) of this section, whichever is higher.
(ii) The Level IV Wage shall be 90 percent of the wage established
under paragraph (b)(2)(ii)(D) of this section, or the wage established
under paragraph (b)(2)(iii)(C)(1)(ii) of this section, whichever is
higher.
(iii) The Level II Wage and Level III Wage shall be determined by
applying the formulae provided in paragraphs (b)(2)(ii)(B) and (C) of
this section to the wages established under paragraphs
(b)(2)(iii)(C)(2)(i) and (ii) of this section.
(3) For the period from January 1, 2025, through December 31, 2025,
the prevailing wage shall be provided by the OFLC Administrator at the
following four levels:
(i) The Level I Wage shall be 95 percent of the wage provided under
paragraph (b)(2)(ii)(A) of this section, or the wage provided under
paragraph (b)(2)(iii)(C)(2)(i) of this section, whichever is higher.
(ii) The Level IV Wage shall be 95 percent of the wage provided
under paragraph (b)(2)(ii)(D) of this section, or the wage provided
under paragraph (b)(2)(iii)(C)(2)(ii) of this section, whichever is
higher.
(iii) The Level II Wage and III Wage shall be determined by
applying the formulae provided in paragraphs (b)(2)(ii)(B) and (C) of
this section to the wages established under paragraphs
(b)(2)(iii)(C)(3)(i) and (ii) of this section.
(4) Beginning January 1, 2026, the prevailing wage shall be
provided by the OFLC Administrator in accordance with the computations
under paragraph (b)(2)(ii) of this section.
(5) Where the Level I Wage or Level IV Wage provided under
paragraphs (b)(2)(iii)(C)(1) through (3) of this section exceeds the
Level I Wage or Level IV Wage provided under paragraph (b)(2)(ii) of
this section in a given period, the Level I Wage or Level IV Wage for
that period shall be the wage provided under paragraph (b)(2)(ii) of
this section, and the Level II Wage and Level III Wage for that period
shall be adjusted by applying the formulae provided in paragraphs
(b)(2)(ii)(B) and (C) of this section.
(D) Where a Level IV Wage provided under paragraph (b)(2)(iii) of
this section cannot be computed due to wage values exceeding the
uppermost interval of the OES wage interval methodology, the OFLC
Administrator shall determine the Level IV Wage using the current
hourly wage rate applicable to the highest OES wage interval for the
specific occupation and geographic area or the arithmetic mean of the
wages of all workers for the most specific occupation and geographic
area available, whichever is highest.
(iv) The OFLC Administrator will publish, at least once in each
calendar year, on a date to be determined by the OFLC Administrator,
the prevailing wage levels under paragraphs (b)(2)(ii) and (iii) of
this section as a notice posted on the OFLC website.
(3) If the employer provides a survey acceptable under paragraph
(g) of this section, the prevailing wage for labor certification
purposes shall be the arithmetic mean of the wages of workers similarly
employed in the area of intended employment. If an otherwise acceptable
survey provides a median and does not provide an arithmetic mean, the
prevailing wage applicable to the employer's job opportunity shall be
the median of the wages of workers similarly employed in the area of
intended employment.
* * * * *
Suzan G. LeVine,
Principal Deputy Assistant Secretary for Employment and Training,
Labor.
[FR Doc. 2021-05847 Filed 3-18-21; 8:45 am]
BILLING CODE 4510-FP-P