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, 15154-15162 [2021-05847]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[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: https://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 https://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 https://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
----------------------------------------------------------------------------------------------------------------
                                                                     Wage transition
                 Year                  -------------------------------------------------------------------------
                                                      Two-step                            Four-step
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------
* 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]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                <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
                                                                 -------------------------------------------------------------------------------------------------------------------------------
    10-year Total...............................................             188              90             700           1,391          24,972          41,403          51,510         120,253
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[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\
---------------------------------------------------------------------------

    \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