Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States: Delay of Effective and Transition Dates, 26164-26179 [2021-10084]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 86, Number 91 (Thursday, May 13, 2021)]
[Rules and Regulations]
[Pages 26164-26179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10084]


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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: Delay of Effective and Transition Dates

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Final rule; delay of effective and transition dates.

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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 January 14, 
2021, rule entitled Strengthening Wage Protections for the Temporary 
and Permanent Employment of Certain Aliens in the United States (the 
rule or Final Rule), from March 15, 2021 until May 14, 2021. On March 
22, 2021, the Department proposed to further delay the effective date 
of the rule by eighteen months from May 14, 2021 until November 14, 
2022, along with corresponding proposed delays to the rule's transition 
dates. The Department proposed an additional delay to 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 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. The Department also proposed the further delay to 
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. 
The Department invited written comments from the public for 30 days, 
until April 21, 2021, on the proposed further delay and received 627 
timely comments. The Department has reviewed the comments received in 
response to the proposal and will delay the effective date of the Final 
Rule for a period of 18 months, along with corresponding delays to the 
rule's transition dates.

DATES: This final rule is effective November 14, 2022. As of May 13, 
2021, the effective date of the Final Rule published on January 14, 
2021, at 86 FR 3608, and delayed on March 12, 2021, at 86 FR 13995, is 
further delayed until November 14, 2022, and the corresponding 
transition dates are delayed until January 1, 2023, January 1, 2024, 
January 1, 2025, and January 1, 2026, respectively.

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

[[Page 26165]]

transition periods under which adjustments to the new wage levels would 
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 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 directed agencies to consider delaying the 
effective date for regulations for the purpose of reviewing 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. The Department 
acknowledged the need to assess and evaluate the prevailing wage 
methodology and computations in the Final Rule due to the complexity of 
the rule, concerns voiced by commenters in response to the 60-day 
rulemaking, and issues raised in litigation challenging the underlying 
rulemaking. 86 FR 13996-13997. To permit time to continue its review, 
the Department published a second NPRM (18-month NPRM or NPRM) on March 
22, 2021, proposing to further delay the effective date of the Final 
Rule by eighteen months from May 14, 2021 until November 14, 2022, 
along with corresponding proposed delays to the rule's transition 
dates. 86 FR 15154. As explained below, the Department proposed the 
additional delay to allow sufficient time for the Department to 
thoroughly consider legal and policy issues related to the Final Rule; 
to prevent confusion and uncertainty among the regulated community over 
the operative wage rates while the Department conducts its review; to 
allow agency officials adequate time to compute and validate prevailing 
wage data covering all occupations and geographic areas; to complete 
and thoroughly test modifications to the Office of Foreign Labor 
Certification (OFLC) Foreign Labor Application Gateway (FLAG) system; 
and to train staff and conduct sufficient public outreach to ensure an 
effective and orderly implementation should the initial transition wage 
rates become effective on July 1, 2021. 86 FR at 15155-15156.
    The 18-month NPRM also highlighted the Department's intent to 
publish a Request for Information (RFI) to allow the public the 
opportunity to provide the Department with information to further 
inform its assessment of prevailing wage levels. The Department issued 
this RFI on April 2, 2021, with a 60-day comment period that closes on 
June 1, 2021, to provide the public an opportunity to provide 
information on the sources of data and methodologies for determining 
prevailing wage levels. 86 FR 17343. The Department noted that 
information received in response to the RFI will inform and be 
considered by the Department as it reviews the Final Rule, which may 
result in the development of a future notice of proposed rulemaking to 
revise the computation of prevailing wage levels. Id.

II. Basis for Proposed Delay of Effective and Transition Dates

    The Department proposed in the 18-month NPRM 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 proposed 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. As explained in the NPRM, the Department proposed this 
delay for three primary reasons.
    First, the Department proposed 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. The 18-month NPRM explained that the 
concerns called 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. The 18-month NPRM also noted 
that many of these same concerns have been raised in the ongoing 
litigation concerning the IFR and the Final Rule. Accordingly, the 
Department believed the proposed delay, in conjunction with additional 
actions such as the RFI that was issued on April 2, 2021, would best 
inform the Department's comprehensive review of the Final Rule and 
consideration of alternate paths. The NPRM noted that the Department 
considered allowing the rule to take effect pending its review and the 
assessment of potential new rulemaking. However, because the concerns 
raised during the 60-day rulemaking and in litigation were substantial 
and called into question fundamental aspects of the rulemaking, the 
Department believed the fairest and most prudent approach was to 
propose a further delay of the rule's effective and transition dates 
rather than allow the rule to take effect without seeking additional 
public input. For example, the NPRM explained that, based on the 
Department's review to date, additional time was needed to 
comprehensively review the record relied upon to support the underlying 
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 15154, 15155 (quoting 86 FR 3608, 3639).
    Second, and relatedly, the Department preliminarily assessed that 
delaying the effective and transition dates as proposed in the NPRM--
instead of allowing those dates to be implemented--would prevent 
confusion

[[Page 26166]]

and uncertainty among the regulated community over the operative wage 
rates while the Department conducted its review.
    Third, the Department explained that the length of the proposed 
delay would allow BLS and ETA's OFLC 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 if, following the Department's 
comprehensive review, the rule's changes associated with the 
computation of wage levels under the Department's four-tiered wage 
structure ultimately must take effect.
    While the Department acknowledged that the proposed delay was 
significant, the Department explained that, based on its initial review 
and the concerns raised, it was clear that a significant amount of time 
was needed to consider all aspects of the rulemaking, including the 
underlying methodology employed, and relevant studies and data. The 
Department sought 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 was an 
appropriate length of time or whether another length of time may be 
more appropriate. The Department also sought 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.
     Specific details and any available data regarding the 
specific challenges commenters face in complying with the Final Rule by 
the current transition date of July 1, 2021.
     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.
     Any other potential consequences of not delaying the 
effective date and transition dates of the Final Rule.

III. Public Comments Received

    The Department invited written comments for a 30-day period on its 
proposal to delay the effective date of the Final Rule by 18 months, 
with corresponding delays to the rule's transition dates. The comment 
period opened on March 22, 2021 and closed on April 21, 2021, with 
comments submitted electronically at https://www.regulations.gov/ using 
docket number ETA-2020-0006. During this comment period, ETA received 
627 comments on its proposal, including 595 unique comments. The vast 
majority of commenters supported the NPRM's proposed 18-month delay of 
the effective and transition dates of the Final Rule.
    The Department appreciates all of the comments it received. After 
full consideration of the comments and for the reasons explained below, 
the Department is adopting the proposal in the NPRM to delay the 
effective date of the Final Rule by 18 months, with corresponding 
delays to the rule's transition dates.

A. Comments Supporting a Delayed Effective Date and Transition Dates

1. Public Comments Received Supporting the Proposal
    The comments received on the Department's NPRM overwhelmingly 
supported an 18-month delay or, in some instances, longer postponement 
or abandonment of the rule, and raised key issues including the 
Department's need to review the data and sources used in determining 
the prevailing wage levels in the Final Rule as well as the need to 
further assess the rule's impact. As a result, most of these commenters 
noted that the Department should take the time and opportunity to 
thoroughly and comprehensively review the rule.
    Commenters supported the proposed delay for various reasons, such 
as disapproval of the Final Rule, fears that the process in adopting 
the rule was rushed, and concerns that the rule lacked evidence and 
scientific data to support the revised prevailing wage levels. These 
commenters included academic institutions, trade and professional 
associations, and a significant number of individual commenters who 
also expressed their concerns about the impact of the Final Rule on 
international students, current visa holders, and prospective visa 
holders. Commenters voiced concerns regarding the Final Rule's impact 
on businesses and industries, particularly academic institutions and 
businesses in the information technology (IT) industry, as well as the 
impact on small to mid-sized entities. Commenters raised concerns that 
the rule is heavily geared toward the IT industry and encouraged the 
Department to review prevailing wage data across industries and sectors 
within industries, and to review the impact of the Final Rule on 
occupational markets by geographic location.
2. General Comments Supporting the Proposal
    Many commenters expressed general, and often strong, support for 
the Department's proposal to delay the effective and transition dates 
of the Final Rule without providing specific reasons for support. The 
Department values the commenters' general input on the delay proposed 
in the NPRM. Because of the general nature of these comments, the 
Department is unable to address them in further detail. More specific 
comments related to the proposal are addressed in the sections that 
follow.
3. Delaying the Rule To Allow Time To Evaluate Matters of Fact, Law, 
and Policy
    Numerous commenters agreed with the Department's proposal to delay 
the Final Rule to allow the Department time to evaluate matters of 
fact, law, and policy related to the rule. One commenter stated it is 
in favor of the proposed delay and provided a policy report to assist 
the agency in evaluating issues of ``fact, law, and; raised by the 
rule. Many individual commenters stated the proposed delay would afford 
the public with more time to review the rule and assess its advantages 
and disadvantages. Other individual commenters expressed concern that 
the rule would discourage immigration and generally discussed the 
benefits that immigrants bring to the United States, including 
increased diversity, strong work ethic, and knowledge of or talent in 
specialized fields. Several commenters noted the rule was published 
during the final days of the previous administration and supported the 
proposed delay to allow entities, such as the Department, the public, 
policymakers, and stakeholders, time to review the rule, including for 
consistency with the current administration's policy goals.
    Many commenters expressed general agreement with the proposed delay 
so that the Department can fully and thoughtfully consider the rule, 
its implications, and the appropriateness of the wage levels in the 
rule. Specifically, commenters requested the Department adopt its 
proposal to allow for thorough review and comprehensive analysis of the 
prevailing wage data and methodology used to establish the prevailing 
wage levels in the rule. Commenters also recommended the Department 
adopt its proposal in order to use the time to reconsider whether 
changes to prevailing wage levels are needed, with several commenters 
stating the changes to the prevailing

[[Page 26167]]

wage levels were too drastic, and others suggesting that the current 
prevailing wage level methodology is sufficient because it provides for 
yearly wage increases in most instances. Commenters observed that the 
rule imposes significant impacts on workers, businesses, and the 
economy, such that the data cited in support of the rule needs careful 
evaluation and verification.
    Based on concerns that the data used in the rule was flawed or 
inaccurate, commenters argued that the proposed delay would afford the 
Department time to ``scientific ally'' review the rule's prevailing 
wage methodology and determine more appropriate prevailing wage levels. 
A commenter, for example, urged the Department to address substantive 
concerns with the methodology in the Final Rule before implementing any 
changes to the prevailing wage requirements. According to the 
commenter, the methodology in the Final Rule is inconsistent with the 
INA, as the rule set the Level 1 ``entry level'' wage using the 
comparator of an individual with a master's degree with no work 
experience even though this standard exceeds the requirements for an H-
1B specialty occupation visa. Other commenters noted substantive 
concerns with the Final Rule, including that key provisions in the rule 
are at odds with the INA, the prevailing wage levels were set in an 
irrational manner and based on ``cherry-picked'' studies, the agency 
did not fully consider factors such as non-compensatory income separate 
from a base salary, and that sources of authority cited in the rule, 
such as Executive Order (E.O.) 13788 (``Buy American and Hire 
American'') and a U.S. Citizenship and Immigration Services policy 
memorandum on H-1B computer related positions have since been revoked 
or rescinded. Numerous commenters pointed to the Department's recent 
RFI (86 FR 17343) and requested the Department reconsider the data and 
sources used in the Final Rule in light of sources obtained through the 
RFI or other available sources of data.
    Several commenters also supported the proposed delay because it 
would provide the Department with an opportunity to review the 
``procedural irregularities'' associated with the underlying rule, 
including those identified in ongoing litigation. These commenters 
raised two main procedural concerns with the rule, namely that the 
Department did not provide the public with proper notice and a 
meaningful opportunity to comment, and failed to disclose relevant data 
and analysis to permit informed comments from the public. One of these 
commenters asserted the Final Rule violated the Administrative 
Procedure Act's (APA) notice and comment requirements while another 
commenter cited a Federal appellate case for the proposition that 
``where the agency has used data as part of its rationale for major 
policy issues, the data must be disclosed.'' Several commenters urged 
the Department to consider making more of the underlying data used to 
compute the wage levels in the Final Rule available for public review. 
A commenter supported the delay to allow the agency time to review the 
rule and determine it is ``unjustified, ignores labor market realities, 
and would harm the country's economic recovery.'' The commenter 
explained that should the agency not make this determination, the 
proposed delay is needed for courts to render final decisions in 
related litigation.
    The Department acknowledges the suggestion of commenters that the 
Department adopt its proposed delay of the Final Rule's effective and 
transition dates to review all aspects of the underlying rulemaking, 
including those related to the methodology in the Final Rule, the 
procedures used to promulgate the rule, and the agency's need and 
alleged failure to disclose the data or studies it relied upon during 
the rulemaking. These serious concerns with the substance of the Final 
Rule and the process through which it was promulgated support the 
proposal to delay the Final Rule in order to allow the agency to 
continue its comprehensive review of the rule, evaluate the information 
it receives from the RFI, and take additional action as necessary, 
which may include the development of a future notice of proposed 
rulemaking and/or the receipt of final decisions in the related 
litigation.
    The Department's ongoing review underscores the need to further 
review and assess the Final Rule in light of the assertions and 
concerns raised by these commenters, including the concern raised by 
litigants, and echoed by the commenters to this rulemaking, that the 
agency failed to make available portions of the technical basis for the 
IFR and Final Rule in time to allow them to provide meaningful 
comments. For example, the litigants specifically allege 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 ] 94, ITServe Alliance, Inc., et al. v. Walsh, et 
al., No. 20-cv-14604 (D.D.C. Apr. 7, 2021); see also First Amended 
Complaint at ] 147, Purdue University, et al. v. Walsh, et al., No. 20-
cv-3006 (D.D.C. 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.''). While continuing its review of the Final 
Rule and responding to the related litigation, the Department recently 
certified the contents of the rulemaking record to the plaintiffs in 
pending litigation challenging the Final Rule. Notice of Filing of 
Certified List of Contents of the Administrative Record, Stellar IT, et 
al. v. Walsh, et al., No. 20-cv-3175 (D.D.C. Apr. 12, 2021); Notice of 
Filing of Certified List of Contents of the Administrative Record, 
Purdue University, et al. v. Walsh, et al., No. 20-cv-3006 (D.D.C. Apr. 
12, 2021). In doing so, the Department has identified potential issues 
surrounding the rulemaking record, which has necessitated the parties 
entering into a protective order in order to make portions of the 
record relied upon by agency decision makers available to these 
litigants. See, e.g., Defendants' Unopposed Motion for Protective 
Order, Stellar IT, et al. v. Walsh, et al., No. 20-cv-3175 (D.D.C. Apr. 
19, 2021).
    Although the Department considered allowing the Final Rule to take 
effect pending its review and consideration of additional action, the 
issues raised above strongly caution in favor of finalizing the 
proposed delay as they call into question fundamental aspects of the 
Final Rule--including the process by which the rule was promulgated and 
whether the prevailing wage levels in the rule appropriately reflect 
the wages of workers in the United States similarly employed. The 
Department believes the fairest and most prudent approach is to delay 
the effective date of the rule, otherwise the Department runs the risk 
of allowing a potentially procedurally and substantively flawed rule to 
take effect, which would unfairly affect the regulated community given 
the potential harm that immediate implementation of the rule would 
impart. The Department believes this delay, along with the recently-
issued RFI, will best inform the Department's comprehensive review of 
the Final Rule and allow it to meaningfully consider all available 
options.

[[Page 26168]]

4. Implementing, Instead of Delaying, the Rule as the Department 
Conducts Its Review
    Many commenters supporting the proposed delay noted the harm that 
immediate implementation of the Final Rule could cause stakeholders. 
According to several individual commenters, stakeholders who would 
benefit from the proposal include (1) prospective or current H-1B 
applicants planning their careers or career transitions; (2) recent 
university graduates or students close to completing their education 
who will soon enter the labor market; and (3) employers such as 
academic institutions and entities in other industries who would 
otherwise need to adjust their hiring practices or staffing models in 
response to the Final Rule. Commenters explained that a delay is needed 
because of inaccuracies with the computation of wage levels in the 
Final Rule, because the rule did not properly consider the impact on 
certain industries or types of workers, and because the rule will not 
have its intended impact. Commenters also stated that a delay is 
necessary as the U.S. economy is still recovering from the impact of 
the COVID-19 pandemic and employers need time to adjust to the salary 
fluctuations caused by the rule should it be implemented. According to 
these commenters, if the Final Rule went into effect now, it would be 
harmful to employers and workers in various industries. The comments 
discussed in this section further highlight potential substantive 
errors with the underlying rulemaking and the harmful impact of these 
errors on the regulated community should the Final Rule go into effect, 
especially now. The concerns raised in the comments discussed below 
support the Department adopting its proposed delay of the rule, rather 
than allowing it to take effect, while the Department conducts its 
review and considers additional action. Even if some of the concerns 
raised below could be alleviated or eliminated as a result of the 
rule's transition provisions, the procedural and substantive concerns 
discussed above remain, calling into question the appropriateness of 
the wage rates established in the Final Rule, including the transition 
rates, and support the Department's decision to delay implementation of 
a potentially procedurally and substantively flawed rule before it 
takes effect.
a. Impact of Not Delaying the Rule on Academic Institutions and 
International Students
    Many commenters supported delaying the Final Rule on the basis that 
immediate implementation of the rule would potentially cause harm to 
academic institutions and international students. Two academic 
institutions provided an overview of how H-1B workers enrich their 
campuses, serving as faculty members, researchers, scholars, medical 
residents and fellows, and professional staff. Commenters stated that 
academic institutions, research institutions, and non-profit 
organizations would not be able to meet the prevailing wage 
requirements in the rule to retain the requisite talent should it be 
implemented immediately. For example, an academic institution explained 
that for some of its positions, immediate implementation of the rule 
would result in a required wage increase of more than $40,000 annually 
per employee. Such increases, according to the commenter, would be 
challenging economically and academically, particularly in light of 
budget pressures caused by the pandemic. The commenter expressed 
support for delaying the effective and transition dates of the 
``flawed'' rule--rather than allowing it to go into effect--so as to 
``minimize confusion and unnecessary complications'' during the 
Department's review and consideration of additional action. Commenters 
also noted it will be difficult for U.S. colleges and universities to 
attract and retain international students because the rule, by setting 
entry-level wages too high, will damage new graduates' employment 
prospects and discourage talented foreign students or workers from 
coming to the United States to study or work. Commenters explained that 
the proposed delay will allow H-1B workers, new graduates, and 
prospective H-1B workers and their employers time to adjust to the rule 
should the Department implement it after its review
    The Department appreciates that the comments provided practical 
information related to potential impacts of the rule on academic 
institutions, international students, and other individual commenters. 
The Department is taking a comprehensive look at the rule's impact on 
the regulated community and may take additional action as necessary 
after it completes its review.
b. Impact of Not Delaying the Rule on Workers
    Many commenters supporting the delay stated the Final Rule was 
flawed or would not achieve its intended objectives to revise 
prevailing wage levels and would adversely affect workers instead. The 
commenters recommended that the Department take additional time to 
assess the rule and design a more effective rule to serve its intended 
purpose, including an assessment of the appropriate point in the OES 
wage distribution at which to establish the entry-level wage under the 
four-tiered wage structure. For example, an employer expressed concern 
that the 35th percentile for Level I wages is too high and does not 
accurately reflect the wage of entry-level workers because the 35th 
percentile is ``usually given to'' candidates with a master's degree 
and two to three years of relevant work experience, whereas the minimum 
requirement for a H-1B visa is a bachelor's degree. Similarly, other 
commenters argued that the Final Rule's Level IV wage was set too high, 
even for workers with many years of experience, and that the rule would 
diminish the pool of skilled laborers in the United States. A commenter 
supported the delay to allow the Department time to adjust the wage 
levels to a more ``reasonable percentile.'' Another commenter 
elaborated on potential adverse effects that workers would experience 
by explaining that without the delay, ``many people who are currently 
applying for H-1B and employment-based permanent residence will be 
given only a month['s] notice before the new rule takes place,'' which 
``could adversely affect a lot of people who just received job offers 
and are preparing to file'' their applications.
    Several commenters warned that a sudden change to the prevailing 
wage levels would cause some employers to lose employees or access to 
talented workers, including those with skills and backgrounds in 
science, technology, engineering, and mathematics (STEM) fields, and 
would exacerbate the shortage of high-level talent in certain 
industries, such as the technology industry. Commenters also noted 
immediate implementation of higher prevailing wage levels could result 
in layoffs or the firing of U.S. and H-1B workers, which would 
exacerbate the unemployment rate and harm the U.S. economy, and 
potentially result in the offshoring of work by U.S. businesses. A few 
individual commenters explained immediate implementation of the rule 
would hurt both employers and jobseekers, with some arguing that the

[[Page 26169]]

rule's higher prevailing wage rates would disrupt foreign workers' 
contributions towards companies' growth or the stability of the U.S. 
economy. Other commenters stated that the wage level changes will 
result in significant wage increases for businesses, such that the 
delay is necessary to provide employers the time to adjust businesses 
practices and payroll details.
    Some commenters supported the delay because, in their view, the 
Final Rule unfairly preferences foreign workers by requiring 
``employers to discriminate against [U.S.] workers by paying foreign 
workers higher salaries for doing the same work.'' Other commenters 
supported delaying the rule on the basis that it is unfair to immigrant 
and non-immigrant workers and negatively impacts guest workers from 
certain countries. One commenter remarked that the delay would send a 
positive message to high-skilled foreign workers, including those 
interested in pursuing careers in STEM fields, and would improve the 
United States' competitive edge by enhancing the nation's ability to 
attract and maintain talented workers. Lastly, several commenters 
expressed support for the delay because of their concern that the Final 
Rule would make it more difficult for them to secure an H-1B visa, an 
outcome the commenters stated would force them to return to their 
countries of origin.
    The Department acknowledges the concerns expressed by commenters 
regarding the impact of the Final Rule on U.S. and foreign workers, 
including those seeking entry-level or senior positions. The Department 
endeavors to protect the wages and working conditions of both U.S. and 
foreign workers, and the concerns raised by these commenters suggest 
that the Department needs to take additional time to review this 
rulemaking to ensure that it accomplishes this goal. In terms of the 
suggestions that commenters provided on the appropriate wage level, the 
Department appreciates the recommendations and encourages commenters to 
submit relevant information on the sources of data and methodologies 
for determining prevailing wage levels by commenting on its recently-
issued RFI, whose comment period closes on June 1, 2021.
c. Impact of Not Delaying the Rule on Industries and Business Processes
    Several individual commenters remarked that the economic challenges 
associated with higher prevailing wage rates would disproportionately 
impact small and medium businesses or start-up companies because they 
are less capable of affording significant salary increases than larger 
companies. An advocacy organization supported the proposed delay, 
arguing that the delay would avoid the ``significant business 
disruptions'' that the Final Rule would introduce.
    Many commenters stated that the rule will affect high-paying 
industries such as the IT industry to a lesser extent, while other 
commenters stated that the rule may potentially harm technology 
companies and an individual commenter expressed the belief that even 
large companies will not be able afford the wage increases required by 
the rule, particularly during the COVID-19 pandemic. An individual 
commenter remarked that the Final Rule would negatively impact growth 
in creative industries because individuals, such as artists, would be 
unable to secure jobs with wages that meet the rule's increased 
prevailing wage rates.
    An anonymous commenter stated that immigration officials and 
lawyers need more time to prepare for the new regulations. Likewise, a 
professional association commented that adopting the proposed delay 
would help make the transition less chaotic and confusing for both 
businesses and employees by affording more time for ``practical and 
systematic changes necessary to implement'' the Final Rule. Similarly, 
a trade association in favor of the delay said it would help employers 
avoid significant near-term logistical and operational challenges. 
Lastly, an individual commenter agreed that the 18-month delay was 
needed to afford the BLS and OFLC additional time to compute and review 
prevailing wage estimates, including integrating prevailing wage data 
into the Foreign Labor Certification Data Center system and FLAG system 
upon conclusion of the Department's review.
    The Department appreciates the comments received regarding the 
rule's potential impact on businesses and the need to afford BLS and 
OFLC sufficient time to compute and review prevailing wage estimates if 
the Department ultimately implements the Final Rule. The Department 
takes seriously the possible effect that this rule will have on 
business operations, especially new, small, and medium-sized 
businesses. This delay will allow the Department to more closely review 
the rule's impact on the regulated community and employers of varying 
sizes who use the PERM, H-1B, H-1B1, or E-3 programs.
d. Impact of the COVID-19 Pandemic as an Additional Consideration To 
Delay the Rule
    Many commenters stated that the Final Rule needed to be delayed due 
to the COVID-19 pandemic. For example, several individual commenters 
expressed concern that more immediate implementation of the Final Rule 
would negatively impact the U.S.'s economic recovery, such as by 
causing attrition or turnover in the workforce. One of these commenters 
added that such impacts would be especially harmful to the IT industry, 
which they said is an important element of the U.S. economy. Relatedly, 
an anonymous commenter remarked that H-1B workers help develop 
innovative software and other tools that keep the United States 
competitive in the global economy and such workers would be difficult 
to replace quickly. Other individual commenters asserted that without 
more time, current and prospective foreign workers and sponsor 
companies hard hit by the pandemic would have trouble adjusting to the 
Final Rule. One of the commenters reasoned, without additional 
explanation, that the proposed delay would make enforcement of the rule 
easier should it ultimately go into effect.
    Commenters also explained that the U.S. economy is still recovering 
from the impact of the pandemic and delaying the rule will allow 
businesses time to recover and adjust to changes in the computation of 
prevailing wage levels should the Department decide to implement the 
rule after its review. The commenters generally agreed that allowing 
the rule to go into effect or be implemented now, in the midst of the 
country's pandemic recovery, would be detrimental to employers and 
would negatively affect workers. For example, one commenter noted that 
``the U.S. economy is still recovering from COVID'' and it ``is almost 
impossible for new [graduates] and entry level employees to obtain 
reasonable wage levels due to COVID,'' such that not adopting the 
proposal ``would result in loss of talent and further harm the economy 
already in distress.'' Another commenter stated, ``Companies already 
struggling economically in the wake of COVID will not be able to afford 
these wages.''
    The Department appreciates the concerns raised by the commenters 
regarding the timing of the rule during the country's pandemic 
recovery, and think that they further support the decision to delay the 
Final Rule.

[[Page 26170]]

5. Further Delaying, Postponing, or Rescinding the Rule
    Numerous commenters stated they supported the delay of 18 months 
and suggested they would support an even longer delay, though they did 
not specify how much longer or why. One commenter expressed 
disagreement with the Final Rule, but requested, if the rule is 
retained, that it be postponed for a couple of years to permit more 
time for people to adjust. One commenter requested the rule be delayed 
for two additional fiscal years due to the ongoing COVID-19 pandemic 
and associated negative economic effects. A trade association suggested 
that the ``implementation of the'' rule be delayed until July 1, 2023, 
in the hopes that the Department would perform a comprehensive review 
of the Final Rule, decide to rescind the rule, and also, after 
evaluating prevailing wage evidence, issue a new rulemaking that meets 
APA requirements. However, it did not provide a clear explanation for 
why it recommended that specific date as opposed to another date. An 
academic institution asked the Department to postpone the effective 
date of the rule until July 1, 2023, after the academic recruitment 
season, to allow colleges and universities the opportunity to adjust 
business practices and budgets for what it called ``significant 
budgetary impacts.''
    The Department understands that the initial transition date of 
January 1, 2023 may be inconvenient for employers and institutions tied 
to an academic school year. However, academic institutions are not the 
only users of the labor certification programs and the Department 
cannot accommodate every industry's unique processes in its selection 
of an implementation date. With regard to the trade association's 
comment, the Department notes it is unclear if the commenter is 
suggesting a delay of the effective date, or the first transition date, 
until July 1, 2023. While the Department appreciates the commenter's 
suggestion to delay implementation of the rule until July 1, 2023 in 
order to align with annual prevailing wage update schedules, the 
Department has taken all factors into consideration, including the 
potential effect on businesses and workers' wages and determined that a 
two-year delay is not needed at this time, even if it may align better 
with current annual wage level updates. The proposed 18-month delay is 
a significant length of time and the Department believes it is a 
sufficient period to engage in a comprehensive review of the underlying 
rule and allow the Department the needed time of approximately eight 
months to compute and validate prevailing wage data covering all 
occupations and geographic areas, complete and test modifications to 
the OFLC FLAG system, train staff, and conduct sufficient public 
outreach to ensure an orderly implementation should the Final Rule go 
into effect.
    Many commenters including trade associations, academic 
institutions, and individual commenters also asked the Department to 
reconsider whether it moves forward with the Final Rule and requested 
the Department rescind, withdraw, terminate, or abandon the rule 
entirely. Other commenters suggested delaying or rescinding the rule 
because the rule is reflective of the immigration policies of the prior 
administration and not reflective of those of the current 
administration. Still other commenters gave varying reasons for 
rescinding the Final Rule, ranging from harm to potential foreign 
students and U.S. academic institutions, to U.S. businesses who would 
not be able to pay the higher wages to entry-level foreign workers, to 
criticisms of how the underlying final rule was written, proposed, and 
finalized.
    In addition to rescinding the underlying rule, some commenters 
encouraged the Department to take the necessary time to analyze the 
Final Rule and its data and engage in new rulemaking. For example, one 
individual commenter stated that the rule should be delayed and 
replaced with a proposal that does not harm workers, but ``filters out 
outsourcing companies.'' Several commenters also urged the Department 
to provide the public with notice and the opportunity to comment on any 
new rulemaking and data in accordance with APA requirements.
    The Department acknowledges the position espoused by many 
commenters that the underlying rule should be rescinded and/or 
replaced. The Department is currently conducting a comprehensive review 
of the Final Rule, which included the issuance of an RFI soliciting 
public input to inform its review by June 1, 2021, 86 FR 17343, and the 
Department may take additional action as needed, such as potentially 
engaging in new rulemaking. Even if the Department's review were 
already complete, to effectuate these suggestions would have required 
allowing the Final Rule to take effect while the Department engaged in 
rulemaking to rescind or amend this rule, and would have resulted in 
confusion and uncertainty among the stakeholder community as well as 
potentially needless fluctuations in wages and unnecessary burdens 
imposed on workers and employers. To avoid this, the Department 
proposed the 18-month delay so that it may fully reevaluate the Final 
Rule in terms of both the methodology used and the policy objectives 
and goals of this administration, receive information from the public 
through the recently-issued RFI, and ultimately choose an appropriate 
path forward. Nonetheless, these comments and the vast majority of the 
commenters' support for the NPRM's 18-month proposal reinforce the 
Department's position that the Final Rule should be delayed at this 
time and thoroughly reviewed based on the procedural and substantive 
concerns discussed above.

B. Comments Opposing a Delayed Effective Date and Transition Dates

    As explained above, an overwhelming majority of the commenters 
supported the Department's proposed delay and raised key issues 
including the Department's need to review the data and sources used in 
determining the prevailing wage levels in the Final Rule as well as the 
need to further assess the rule's impact. However, a minority of 
commenters expressed opposition to the proposed delay, referencing 
concerns surrounding alleged abuse of the H-1B program and lottery, as 
well as support for raising wages for U.S. and foreign workers. Many 
individual commenters discussing the H-1B program argued that abusive 
outsourcing companies hire foreign workers for less pay, thus taking 
job opportunities from qualified U.S. workers. One individual commenter 
asserted that, under the current system, immigrants are ``indentured'' 
to employers that treat them unfairly and take advantage of them. An 
institutional commenter stated that H-1B visa holders are at a 
disadvantage and limited in their ability to change jobs and negotiate 
better wages and benefits. Commenters asserted that the underlying rule 
is key to fighting H-1B abuse and protecting U.S. workers. An anonymous 
commenter reasoned that immediate implementation of the Final Rule 
would protect workers from exploitation while still allowing the 
Department to improve the regulations in the future, such as by 
tailoring wages based on geography. Similarly, a policy organization 
said the Department should not forgo an immediate opportunity to 
improve wages, benefits, and job security. Many commenters also cited 
the pandemic as a reason to enact the rule now to protect the American 
workforce and assist with economic recovery.
    Many individual commenters opposed the proposed delay and supported 
implementing policies that

[[Page 26171]]

favor and attract higher skilled workers. Commenters also argued the 
Final Rule provides more opportunities to attract and retain foreign 
workers in the technology, science, finance, and healthcare industries 
to strengthen U.S. competitiveness and the economy. Other commenters 
supported increasing wage levels for highly-skilled foreign workers so 
the United States will retain the best foreign talent. An anonymous 
commenter expressed concern that the proposed delay would subject 
worthy applicants to continued uncertainty as well as defeat the goal 
of attracting top talent to the United States. Two individual 
commenters asserted that implementing the Final Rule now would allow 
many talented foreign workers who have had to leave the United States 
return and help contribute to the U.S. economy.
    Two anonymous commenters stated that raising wages immediately 
would benefit foreign students with F-1 visas as well as U.S. workers. 
Other commenters claimed that implementing wage increases without delay 
would not harm highly qualified international students because after 
three years of optional practical training (OPT) their wages will reach 
the higher wage level. A few other commenters opposed delaying the 
implementation of the Final Rule stating ``it is not fair'' to 
international students who have obtained their education in the United 
States, but then have trouble competing for job opportunities because 
outsourcing companies hire foreign H-1B workers at lower wages.
    One institutional commenter opposed the delay alleging that it 
would cause companies to continue to hire foreign workers at less than 
market wages, and that the delay would cause confusion among 
stakeholders as to ``what the H-1B wages rules will be after [the 
delay].'' Furthermore, it noted that the current methodology was 
promulgated outside notice and comment rulemaking and the Final Rule is 
thus more legally defensible. It alleges as well that changing the 
methodology to the proposed method ``should not be burdensome on DOL 
staff.'' In spite of this, the commenter acknowledges that the ``wage 
methodology in the final rule is not perfect, and there is more work to 
be done to fulfill DOL's duty to protect the integrity of the H-1B 
program and ensure it meets its intent.'' The commenter added it would 
like wages to be raised even higher and for the Department to address, 
in its view, the ``lax standards'' for employers when choosing 
independent wage sources. The Department notes that this rulemaking is 
about the proposal to delay the effective date of the Final Rule, not 
the underlying rule itself and, as noted above, serious procedural and 
substantive concerns have been raised repeatedly as to the viability 
and defensibility of the Final Rule.
    Another policy organization opposed the delay arguing that the 
Final Rule lessens the risk that U.S. workers would be ``replaced by 
cheaper labor from abroad.'' The commenter noted that the current wages 
are below market level. However, much like the aforementioned 
institutional commenter, this commenter also acknowledged that the 
``proposed wage levels are still too low'' and urged the Department to 
set the Level 1 wage ``to at least the 50th percentile.''
    These two institutional commenters and a third individual commenter 
argued that the delay would cost workers billions of dollars over the 
next decade and cited to the 18-month NPRM. See 86 FR 15154, 15159. One 
commenter noted that technology companies have performed strongly in 
the past year as demand for their services have increased, which the 
commenter believed to mean the companies could remain profitable while 
paying higher wages. The individual commenter also pointed to the 18-
month NPRM and argued that the statement that ``the Department expects 
that the increase in wages may incentivize some employers'' to hire 
domestic workers rather than H-1B employees is justification for 
implementing the rule now. See 86 FR 15154, 15158. Finally, the 
individual commenter stated that adjusting the wage levels to 
ameliorate the impact from legal immigration on domestic workers' wages 
should be the immediate priority.
    The Department appreciates the comments provided and addresses them 
in turn. First, the Department continues to be as diligent as possible 
in investigating and preventing abuse within the H-1B program, and 
shares the commenters' concerns for the protection of U.S. and H-1B 
workers. The Department is unable to address commenters' concerns 
related to alleged abuse of the H-1B lottery system or this visa 
program generally at this time since it is beyond the scope of the 
Department's regulatory authority and beyond the scope of this 
rulemaking.
    Second, the Department notes that while it has been suggested that 
determining the wages is something ``straightforward'' and requires 
nothing more ``complex than what is currently done,'' this is not the 
case. As mentioned previously, the Department has determined that it 
needs approximately eight months 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 orderly implementation 
should the Final Rule go into effect. More 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. 86 FR 15154, 15156. 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 entities, nonprofit 
research organizations, or governmental research agencies. 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. After receiving the final prevailing wages for Levels 
I and IV, OFLC would 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.
    An individual commenter stated that this justification for 
extension suggests

[[Page 26172]]

poor planning and timing by the Department. In response, the Department 
acknowledges that, when the IFR was published in October 2020, the 
abbreviated timeline available to BLS and OFLC meant that the 
Department could not ensure the proper testing and implementation of 
the new methodology for computing the wage levels or follow the 
standard implementation process as detailed 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. This 
experience supports the Department's action here; 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 it take 
effect after the Department completes its comprehensive review. Indeed, 
one commenter supported the delay precisely because they agreed BLS and 
OFLC needed additional time to compute and review prevailing wage 
estimates, including integrating prevailing wage data into the Foreign 
Labor Certification Data Center system and FLAG system upon conclusion 
of the Department's review.
    Third, the Department acknowledges the potential substantial 
economic impact of this delay not only on employers but also on U.S. 
and foreign workers. Commenters argued that delaying the rule would 
harm workers and wages and could incentivize the hiring of H-1B workers 
over domestic workers. Two institutional commenters opposed the 
proposed delay but criticized the Final Rule on the basis that the wage 
methodology outlined in the rule does not sufficiently protect workers' 
wages and the integrity of the programs. In contrast, commenters 
supporting the proposed delay argued that the Final Rule would lead to 
outcomes that are detrimental to workers, including an increase in 
companies outsourcing jobs, the potential bankruptcy of small 
businesses, and negative impacts on academic institutions both in terms 
of their financial viability and ability to conduct meaningful 
research. In recognition of commenters' differing opinions on the Final 
Rule's expected impact on U.S. and foreign workers, the Department 
considered allowing the Final Rule to take effect pending its 
comprehensive review. However, the Department believes, on balance, 
that the serious concerns with the substance of the Final Rule and the 
process through which it was promulgated strongly counsel in favor of 
finalizing the proposed delay to allow the agency the time to carefully 
reevaluate the Final Rule, including the accuracy of the costs and 
benefits articulated in the rule and to avoid implementing changes to 
the Department's regulations that it may ultimately determine to lack a 
basis in law and that may not survive judicial scrutiny. The 
Department's decision to finalize the delay avoids some or all of the 
potential effects described by commenters from occurring only to then 
require stakeholders--employers and workers alike--to unwind actions 
taken to comply with the Final Rule or to take further action should 
the rule not survive judicial scrutiny or should the Department engage 
in additional action such as new rulemaking after it completes its 
review. In short, while the Department acknowledges the concerns raised 
by commenters opposed to the delay it has concluded that the fairest 
and most prudent approach is to delay the effective and transition 
dates of the rule.
    Indeed, the Department's ongoing review of the Final Rule serves to 
underscore the assertions and concerns raised by the vast majority of 
commenters on the 18-month NPRM and litigants in pending litigation 
that the agency failed to make available portions of the technical 
basis for the IFR and Final Rule in time to allow for meaningful 
comments. For example, the Department has itself identified potential 
issues surrounding the rulemaking record, which recently necessitated 
the courts' issuance of protective orders in pending litigation 
challenging the Final Rule before certain contents of the rulemaking 
record could be disclosed to litigants. See, e.g., Defendants' 
Unopposed Motion for Protective Order, Stellar IT, et al. v. Walsh, et 
al., No. 20-cv-3175 (D.D.C. Apr. 19, 2021). As discussed above, these 
concerns highlight the risk faced by the Department in ongoing 
litigation and support the decision to delay the effective and 
transition dates of the Final Rule rather than risk continual 
disruption to the stakeholder community.
    While the Department noted in the 18-month NPRM that the delay may 
result in a significant reduction of transfer payments, the delay could 
also lessen the potential for ``deadweight losses . . . 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 [being] met.'' 86 FR 15154, 
15158. The Department believes this delay, along with the recently-
issued RFI, will best inform the Department's comprehensive review of 
the Final Rule and allow it to meaningfully consider all available 
options to ensure prevailing wage levels appropriately reflect the 
wages of workers in the United States similarly employed. The 
Department also notes that should commenters believe the existing 
methodology and wage levels or those contained in the Final Rule are 
harmful to U.S. or foreign workers and have relevant information on 
sources of data and methodologies for determining prevailing wage 
levels, they are encouraged to submit comments on the RFI before the 
comment period closes on June 1, 2021, 86 FR 17343, especially as 
comments unrelated to the proposed delay are outside the scope of this 
action.
    Finally, many commenters expressed general opposition to the 
proposed delay or opposed the proposed delay and urged the Department 
to implement the higher wage levels as soon as possible without 
providing additional explanation for their positions. Unfortunately, 
the Department is unable to address such general comments in a 
meaningful way. An anonymous commenter asserted that the proposed delay 
would adversely affect workers by making them wait longer for 
prevailing wage determinations. However, OFLC's National Prevailing 
Wage Center is continuing to process prevailing wage applications as 
normal. An anonymous commenter asserted that the reasons given for the 
proposed delay are ``not substantive and data-driven,'' but did not 
provide any elaboration. The Department notes that it has discussed in 
detail, both here and in the NPRM, serious substantive and procedural 
concerns raised by other commenters and litigants as well as the steps 
needed to implement the Final Rule should the Department ultimately do 
so.
    The Department values and appreciates the commenters' input on the 
18-month NPRM. As discussed above, the Department believes the proposed 
delay will best inform a comprehensive review of the Final Rule. While 
the Department has considered allowing the rule to take effect pending 
its review and the assessment of potential new rulemaking, it has 
concluded that the concerns raised by commenters regarding procedural 
and substantive flaws with the Final Rule call into question 
fundamental aspects of the rulemaking to such a degree that

[[Page 26173]]

the fairest and most prudent approach is to delay this rule.

C. Out of Scope Comments

    The Department's 18-month NPRM invited comments related to the 
Department's proposal to delay the effective and transition dates of 
the Final Rule. Comments received that are unrelated to the 
Department's proposal are beyond the scope of this action and have not 
been considered in the Department's assessment of its proposed 18-month 
delay.
    Numerous comments were beyond the scope of this action. Many of the 
comments were too general to determine the nature of the comment. Other 
commenters expressed satisfaction or dissatisfaction with aspects of 
the Department's Final Rule or the rule's methodology without 
addressing the proposed delay. Several commenters expressed concerns 
with the H-1B lottery, concerns with the immigration system as a whole, 
and expressed personal sentiments on immigration or particular visa 
circumstances and potential prospective employment that were beyond the 
scope of this rulemaking. Many comments appeared to be addressing a 
rule which had been proposed by U.S. Citizenship and Immigration 
Services (USCIS), but the comments were unclear.

D. Immediate Effective Date

    Section 553(d) of the APA provides that substantive rules should 
take effect not less than 30 days after the date they are published in 
the Federal Register unless ``otherwise provided by the agency for good 
cause found.'' 5 U.S.C. 553(d)(3). The Department determines it has 
good cause to make this rule effective immediately upon publication 
because allowing for a 30-day period between publication and the 
effective date of this rulemaking would be impracticable and cause 
unnecessary confusion over the applicable prevailing wage methodology. 
In particular, a 30-day period would result in the Final Rule entitled 
Strengthening Wage Protections for the Temporary and Permanent 
Employment of Certain Aliens in the United States taking effect on May 
14, 2021, before the delay finalized in this rulemaking would begin. As 
such, a 30-day period would undermine the purpose for which this rule 
is being promulgated and result in confusion and uncertainty for the 
regulated community should the Final Rule go into effect only for the 
rule's effective and transition dates to change a few weeks later.
    This confusion could lead to harm and hardship to the regulated 
community, including to employers, U.S. workers, and foreign 
beneficiaries, who, if unclear on the operative prevailing wage 
methodology due to the inclusion of a 30-day period, may expend costs 
or resources they otherwise would not spend. A professional 
association, for example, encouraged the Department to ``finalize the 
delay as soon as possible'' given the current initial transition date 
of July 1, 2021, in order to ``provide certainty to companies,'' who 
need sufficient time to plan and ensure compliance with applicable 
requirements of the PERM, H-1B, H-1B1, and E-3 programs. An academic 
institution indicated the adoption of the proposed delay, rather than 
allowing the rule to go into effect, will ``prevent confusion and 
uncertainty among the regulated community over the operative wage 
rates,'' suggesting that allowing the Final Rule to take effect for 
only a month would cause unnecessary confusion and uncertainty. Other 
commenters highlighted the adverse effects that employers and workers 
could experience from immediate implementation of the Final Rule, 
including the termination of workers, significant business disruptions, 
and the potential bankruptcy of small businesses, which further support 
a finding of good cause.
    Moreover, this rulemaking institutes a delay of the Final Rule, 
rather than itself imposing any new compliance obligations on 
employers. Therefore, the Department finds that a lapse between 
publication and the effective date of this rule delaying the Final 
Rule's effective and transition dates is unnecessary. To eliminate any 
possible uncertainty about the applicable prevailing wage methodology, 
especially given the substantive concerns that have been raised by 
litigants and commenters regarding the appropriateness of the 
prevailing wage levels in the Final Rule as well as the Department's 
identification of potential issues surrounding the rulemaking record 
and conclusions therein, and due to unavoidable limitations of time 
related to the Final Rule's current effective date of May 14, 2021, the 
Department finds it has good cause to make this rule effective 
immediately upon publication.

E. Conclusion

    Numerous comments raised substantive and procedural concerns 
related to the Department's publication of the Final Rule, the 
methodology or computations contained within the rule, and the harm 
that immediate implementation of the rule could cause the regulated 
community and the U.S. economy. The Department acknowledges these 
public comments as well as concerns that have been raised by commenters 
to the 60-day rulemaking and in pending litigation challenging the 
Department's Final Rule. While the Department recognizes that the 
additional delay is significant, based on its ongoing review and the 
concerns described above, it is clear that a substantial amount of time 
is necessary to consider all aspects of this rulemaking, including the 
underlying methodology employed and relevant studies and data. Given 
the complexity of the regulation, the serious concerns that have been 
raised, and the potential harm that would result from immediate 
implementation of the Final Rule, the Department believes a delay to 
allow the agency sufficient time to evaluate the rule, instead of 
permitting the rule to take effect while the Department conducts its 
review, is the more prudent path. This delay will in turn provide the 
Department time to review sources and data received on its recently-
issued RFI that could inform further action on the rule and/or the 
development of a future rulemaking to revise the computation of 
prevailing wage levels in a manner that more effectively ensures the 
employment of certain immigrant and nonimmigrant workers does not 
adversely affect the wages of U.S. workers similarly employed. Finally, 
the delay will afford BLS and OFLC adequate time to appropriately 
implement changes to the prevailing wage structure should the 
Department ultimately implement the Final Rule as published in the 
Federal Register on January 14, 2021.

IV. 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

[[Page 26174]]

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 2021 Final Rule \1\ updated the computation of wage levels 
under the Department's four-tiered wage structure based on the OES wage 
survey administered by BLS. The 2021 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 2021 Final 
Rule's transfer payments from employers to employees, the Department 
simulated wage impacts for historical certification data based on the 
2021 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 2021 Final Rule.
---------------------------------------------------------------------------

    \1\ The 2021 Final Rule was published in the Federal Register on 
January 14, 2021. 86 FR 3608, 3608-3611.
---------------------------------------------------------------------------

    The 2021 Final Rule transition period allowed foreign workers and 
their employers time to adapt to the new wage rates. For most job 
opportunities, the 2021 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 from July 1, 2024 onwards the 
prevailing wage would be the final wage levels.
    The Department is delaying 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 is instituting corresponding one-year delays for each of the 
remaining transition dates, which are revised to January 1, 2024, 
January 1, 2025, and January 1, 2026, respectively. The Department is 
delaying the implementation of the 2021 Final Rule for three primary 
reasons: (1) To allow the Department to have sufficient time to engage 
in its comprehensive review of the 2021 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 should the 2021 Final Rule go 
into effect.
    Under the Final Rule, current wage levels would be in effect 
through December 31, 2022, and wage impacts estimated in the 2021 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 Final 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 Final 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 being 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 2021 Final Rule as 
the baseline and shifted them according to the Final Rule's new 
transition effective dates. To shift transfer payments the Department 
used the average annual wage impacts from Exhibit 7 in the 2021 Final 
Rule's E.O. 12866 section and applied them to the Final Rule's 
transition period. Exhibit 1, below, presents the revised wage 
transition schedule under the two groups.

[[Page 26175]]



  Exhibit 1--Final 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       90%.
                                Level.
2025.........................  Final Wage       95%.
                                Level.
2026-2030....................  Final Wage       Final Wage Level.
                                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 2021 Final Rule, refer to Exhibit 10 of the 2021 Final Rule.

                                               Exhibit 2--Shifted Transfer Payments of the 2021 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
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The Department expects that the Final 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 Final Rule's 
reduced transfer payments by differencing the shifted transfer payments 
in Exhibit 2 from the 2021 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 2021 Final Rule, the shifted transfer payments resulting from the 
Final Rule delay, and the resulting reduction of transfer payments by 
the Final Rule.\2\
---------------------------------------------------------------------------

    \2\ 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 Final Rule
                                                 [2019 millions]
----------------------------------------------------------------------------------------------------------------
                                                                                   Shifted 2021     Final Rule
                                                                    2021 Final      Final Rule     reduction of
                              Year                                 Rule transfer     transfer        transfer
                                                                     payments        payments        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

[[Page 26176]]

 
    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 Final Rule will have a 
significant economic impact on a substantial number of small entities 
and is therefore publishing this Final Regulatory Flexibility Analysis 
as required.
1. Why the Department Is Considering Action
    The Department is delaying the effective date of the 2021 Final 
Rule for three primary reasons: (1) To allow the Department to have 
sufficient time to engage in its comprehensive review of the 2021 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 should the Final Rule 
go into effect.
2. Objectives of and Legal Basis for the Proposed Rule
    The Department is now delaying 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 is instituting corresponding one-year delays for each of the 
remaining transitions dates, which are 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 Final 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 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. The Agency's Response to Public Comments
    The Department did not receive public comments on the IRFA.
4. Response to Comments From the Chief Council for Advocacy of the 
Small Business Administration
    The Department did not receive comments from the Chief Council for 
Advocacy of the Small Business Administration.
5. Number of Small Entities Affected by the Final Rule
    The Final Rule does not change the number of impacted small 
entities. A summary of impacted small entities can be found in Exhibit 
13 of the 2021 Final Rule's RFA section.
6. Compliance Requirements of the Final Rule, Including Reporting and 
Recordkeeping
    The Final Rule does not have any reporting, recordkeeping, or other 
compliance requirements impacting small entities. The Department 
expects that the change will result in savings to employees represented 
by transfer payments from employees to employers due to the Final 
Rule's delay in effective date.
7. Calculating the Impact of the Final Rule on Small Entities
    The small entity impacts are unchanged in magnitude from Exhibit 14 
in the 2021 Final Rule's RFA section. However, under this Final Rule 
the small entity impacts represent wage savings to small businesses 
relative to the 2021 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 Final 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 2021 Final Rule's RFA section. 
Therefore, the Department estimates that this Final Rule will have a 
significant economic impact on a substantial number of small entities.

[[Page 26177]]

8. Relevant Federal Rules Duplicating, Overlapping, or Conflicting With 
the Final Rule
    The Department is not aware of any relevant Federal rules that 
conflict with this Final Rule.
9. Steps the Agency Has Taken To Minimize the Significant Economic 
Impact on Small Entities
    This Final Rule results in wage savings to small entities and 
therefore has a beneficial impact on small entities. The Department did 
not receive public comments on viable alternatives to 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.\3\
---------------------------------------------------------------------------

    \3\ 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 final 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.\4\ 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.\5\ This final 
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.
---------------------------------------------------------------------------

    \4\ See 2 U.S.C. 658(6).
    \5\ See 2 U.S.C. 658(7)(A)(ii).
---------------------------------------------------------------------------

D. Congressional Review Act

    OIRA has determined that this final 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 final 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 final 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 final 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 final 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 final 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.

Department of Labor

    Accordingly, for the reasons stated in the preamble, the Department 
of Labor amends 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

[[Page 26178]]

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 November 14, 2022 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 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

[[Page 26179]]

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. 2021-10084 Filed 5-12-21; 8:45 am]
BILLING CODE 4510-FP-P