Request for Information on Data Sources and Methods for Determining Prevailing Wage Levels for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States
| Published date | 02 April 2021 |
| Citation | 86 FR 17343 |
| Record Number | 2021-06889 |
| Section | Proposed rules |
| Court | Employment And Training Administration |
Federal Register, Volume 86 Issue 62 (Friday, April 2, 2021)
[Federal Register Volume 86, Number 62 (Friday, April 2, 2021)]
[Proposed Rules]
[Pages 17343-17346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06889]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 655 and 656
[Docket No. ETA-2021-0003]
RIN 1205-AC00
Request for Information on Data Sources and Methods for
Determining Prevailing Wage Levels for the Temporary and Permanent
Employment of Certain Immigrants and Non-Immigrants in the United
States
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Request for information (RFI).
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SUMMARY: The Department of Labor (Department) invites interested
parties to provide information on the sources of data and methodologies
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, E-3
nonimmigrant visas. The information received in response to this RFI
will inform and be considered by the Department as it reviews the final
rule entitled Strengthening Wage Protections for the Temporary and
Permanent Employment of Certain Aliens in the United States, published
in the Federal Register on January 14, 2021, which may result in the
development of a future notice of proposed 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.
DATES: Submit written comments on or before June 1, 2021.
ADDRESSES: You may submit written comments electronically by the
following method:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions on the website for submitting comments.
Instructions. Include the docket number ETA-2021-0003 in your
comments. All comments received will be posted without change to http://www.regulations.gov. Please do not include any personally identifiable
or confidential business information you do not want publicly
disclosed.
FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office
of Foreign Labor Certification, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue NW, Room N-5311,
Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access
the telephone numbers above via TTY/TDD by calling the toll-free
Federal Information Relay Service at 1 (877) 889-5627.
SUPPLEMENTARY INFORMATION:
I. Background
The Immigration and Nationality Act (INA), as amended, assigns
certain responsibilities to the Secretary of Labor (Secretary) relating
to wages and working conditions of certain categories of immigrant and
nonimmigrant foreign workers.\1\ The Secretary issues permanent labor
certifications for certain employment-based immigrants and certifies
labor condition applications (LCAs) for the temporary employment of
foreign workers in specialty occupations under the H-1B, H-1B1, and E-3
visa classifications.\2\ A specialty occupation is an occupation that
requires theoretical and practical application of a body of highly
specialized knowledge and the attainment of a bachelor's or higher
degree in the specific specialty, or its equivalent, as a minimum for
entry into the occupation in the United States.\3\
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\1\ There are two general categories of U.S. visas: Immigrant
and nonimmigrant. Immigrant visas are issued to foreign nationals
who intend to live permanently in the U.S. Nonimmigrant visas are
for foreign nationals who enter the U.S. on a temporary basis--for
tourism, medical treatment, business, temporary work, study, or
other reasons.
\2\ 8 U.S.C. 1101(a)(15)(E)(iii), (a)(15)(H)(i)(b),
(a)(15)(H)(i)(b1).
\3\ See 8 U.S.C 1184(i).
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The Department may issue a permanent labor certification only after
a determination that employment of the foreign worker will not
adversely affect the wages and working conditions of U.S. workers
similarly employed.\4\ Employers seeking to employ an immigrant foreign
worker on a permanent basis must attest that they will pay at least the
prevailing wage and obtain a Prevailing Wage Determination (PWD) for
the job opportunity from the Department.\5\ Similarly, employers
seeking to employ a nonimmigrant foreign worker on a temporary basis
under the H-1B, H-1B1, or E-3 programs must attest that they will pay
the higher of the actual wage paid to employees with similar experience
and qualifications or the prevailing wage for
[[Page 17344]]
the occupational classification in the area of intended employment.\6\
These employers may obtain a PWD from the Department, but have the
option to use other sources, including a compliant employer-provided
wage survey, to determine the prevailing wage.\7\ 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 published in the Federal Register on January 14, 2021, and will
not be restated herein. 86 FR 3608, 3608-3611.
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\4\ 8 U.S.C. 1182(a)(5)(A)(i)(II).
\5\ 20 CFR 656.10(c)(1), 656.15(b)(1), and 656.40(a).
\6\ 8 U.S.C. 1182(n)(1)(A), (t)(1)(A); 20 CFR 655.731(a).
\7\ 20 CFR 655.731(a)(2)(ii)(A)-(C).
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II. Prevailing Wage Background
A. The Department's Prevailing Wage Determination Methodology
The Department has long relied on BLS's OES data to establish
prevailing wage levels. The OES is a comprehensive, statistically valid
survey that is currently used for satisfying the Department's purposes
in setting wages in most immigrant and nonimmigrant programs. The OES
wage survey is among the largest continuous statistical survey programs
of the Federal Government. BLS produces the survey materials and
selects the nonfarm establishments to be surveyed using the list of
establishments maintained by State Workforce Agencies (SWAs) for
unemployment insurance purposes. The OES collects data from over one
million establishments. Salary levels based on geographic areas are
available at the national and State levels and for certain territories
in which statistical validity can be ascertained, including the
District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands.
Salary information is also made available at the metropolitan and
nonmetropolitan area levels within a State. Wages for the OES survey
are straight-time, gross pay, exclusive of premium pay. Base rate,
cost-of-living allowances, guaranteed pay, hazardous duty pay,
incentive pay including commissions and production bonuses, tips, and
on-call pay are included. The Department continues to believe the
inclusion of all the features described above make the OES a valuable
source for use in many of the Department's foreign labor programs.\8\
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\8\ Wage Methodology for the Temporary Non-agricultural
Employment H-2B Program, 76 FR 3452, 3458 (Jan. 19, 2011).
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The Department incorporated the wage component of the OES survey
into its prevailing wage guidance in 1997.\9\ At the time, the
Department divided OES wage data into two skill levels: a Level I wage
for ``beginning level employees'' and a Level II wage for ``fully
competent employees.'' Because the OES survey does not provide data
about skill differentials within Standard Occupational Classification
(SOC) codes, the Department established the entry and experienced skill
levels mathematically.\10\ Specifically, under a Memorandum of
Understanding, BLS computed a Level I wage calculated as the mean of
the lowest paid one-third of workers in a given occupation and a Level
IV wage calculated as the mean wage of the highest paid upper two-
thirds of workers.\11\
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\9\ Prevailing Wage Policy for Nonagricultural Immigration
Programs, General Administration Letter No. 2-98 (GAL 2-98) (Oct.
31, 1997), available at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=942.
\10\ GAL 2-98 at 5.
\11\ Intra-Agency Memorandum of Understanding executed by Mr.
John R. Beverly, III, Director, U.S. Employment Service, ETA, and
Ms. Katharine Newman, Chief, Division of Financial Planning and
Management, Office of Administration, BLS (Sept. 30, 1998).
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In the H-1B Visa Reform Act of 2004, Congress amended the INA to
provide that where the Department ``uses, or makes available to
employers, a governmental survey to determine the prevailing wage, such
survey shall provide at least 4 levels of wages commensurate with
experience, education, and the level of supervision.'' \12\ Further,
the amendment provided that where the ``survey has only 2 levels, 2
intermediate levels may be created by dividing by 3, the difference
between the 2 levels offered, adding the quotient thus obtained to the
first level and subtracting that quotient from the second level.'' \13\
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\12\ Consolidated Appropriations Act, 2005, Public Law 108-447,
div. J, tit. IV, Sec. 423; 118 Stat. 2809 (Dec. 8, 2004).
\13\ See 8 U.S.C. 1182(p)(4).
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In order to implement the INA's four-tier prevailing wage
provision, the Department published comprehensive Prevailing Wage
Determination Policy Guidance for Nonagricultural Immigration Programs
(2005 Guidance), which expanded the two-tier OES wage level system to
provide four ``skill levels:'' Level I ``entry level,'' Level II
``qualified,'' Level III ``experienced,'' and Level IV ``fully
competent.'' \14\ The Department applied the formula in the INA to its
two existing wage levels to set Levels I through IV.\15\ In 2010, the
Department centralized the prevailing wage determination process for
nonagricultural labor certification programs within OFLC's National
Prevailing Wage Center (NPWC).\16\ In preparation for this transition,
the Department issued new Prevailing Wage Determination Policy Guidance
for Nonagricultural Immigration Programs (2009 Guidance).\17\ This
guidance currently governs OFLC's PWD process for the PERM, H-1B, H-
1B1, and E-3 visa programs.
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\14\ Employment and Training Administration, Prevailing Wage
Determination Policy Guidance, Nonagricultural Immigration Programs,
at 7 (May 2005)(hereinafter 2005 Guidance), available at https://www.foreignlaborcert.doleta.gov/pdf/policy_nonag_progs.pdf; see also
85 FR 63872, 63874-63876 for a discussion of the development of the
prevailing wage determination process.
\15\ 2005 Guidance at 1.
\16\ See Labor Certification Process and Enforcement for
Temporary Employment in Occupations Other Than Agriculture or
Registered Nursing in the United States (H-2B Workers), and Other
Technical Changes, 73 FR 78020 (Dec. 19, 2008); Prevailing Wage
Determinations for Use in the H-1B, H-1B1 (Chile/Singapore), H-1C,
H-2B, E-3 (Australia), and Permanent Labor Certification Programs;
Prevailing Wage Determinations for Use in the Commonwealth of the
Northern Mariana Islands, 74 FR 63796 (Dec. 4, 2009).
\17\ Employment and Training Administration Prevailing Wage
Determination Policy Guidance, Nonagricultural Immigration Programs
(revised Nov. 2009) (hereinafter 2009 Guidance), available at
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.
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When assigning a prevailing wage using OES data, the NPWC examines
the nature of the job offer, the area of intended employment, and the
job duties for workers that are similarly employed.\18\ In particular,
the NPWC uses the SOC taxonomy to classify the employer's job
opportunity into an occupation by comparing the employer's job
description, title, and requirements to occupational information
provided in sources like the Department's Occupational Information
Network (O*Net).\19\ Once the NPWC identifies the applicable SOC code,
it determines the appropriate wage level for the job opportunity by
comparing the employer's job description, title, and requirements to
those normally required for the occupation, as reported in sources like
O*Net. This determination involves a step-by-step process in which each
job opportunity begins at Level I (entry level) and may progress to
Level II (experienced), Level III (qualified), or Level IV (fully
competent) based on the NPWC's comparison of the job opportunity to
occupational requirements, including the education, training,
experience, skills, knowledge,
[[Page 17345]]
and tasks required in the occupation.\20\ After determining the
prevailing wage level, the NPWC issues a PWD to the employer using the
OES wage for that level in the occupation and area of intended
employment.
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\18\ Id. at 3.
\19\ Id. at 1-7; see also Occupational Information Network,
available at http://online.onetcenter.org. O*Net provides
information on skills, abilities, knowledge, tasks, work activities,
and specific vocational preparation levels associated with
occupations and stratifies occupations based on shared skill,
education, and training indicators.
\20\ 2009 Guidance at 6.
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B. Procedural History Revising the Computation of Prevailing Wage
Levels Based on the OES Survey
On October 8, 2020, the Department's Employment and Training
Administration (ETA), published an Interim Final Rule (IFR), 85 FR
63872, revising the methodology the Department uses to determine
prevailing wage levels for the H-1B, H-1B1, E-3, and PERM programs.
Because the Department determined that the existing wage levels were
artificially low and provided an opportunity for employers to hire and
retain foreign workers at wages well below what their U.S. counterparts
earn, the Department revised wage provisions at 20 CFR 655.731 and
656.40 to adjust the existing wage levels. 85 FR 63872, 63877.
Specifically, the Department adjusted the four wage levels,
respectively, from approximately the 17th, 34th, 50th, and 67th
percentiles to approximately the 45th, 62nd, 78th, and 95th
percentiles. 85 FR 63872, 63888-63894.
The Department also determined that it had good cause to issue the
IFR without prior notice and opportunity for the public to comment. 85
FR 63872, 63898. The Department published the IFR with an immediate
effective date, but provided for the submission of public comments
during a prescribed 30-day public comment period that closed on
November 9, 2020. During this 30-day period, the Department received
2,340 comments. Several commenters supported the IFR because they
thought that it established wages more closely aligned with actual wage
levels and would prevent abuse of the program by those employers and
their clients seeking to use the H-1B program as a lower cost
alternative to hiring U.S. workers. However, most commenters opposing
the IFR expressed concern that the revised wage levels did not
correspond to wages paid to U.S. workers similarly employed. Four
groups of plaintiffs separately challenged the IFR and, in each case,
the district court entered an order that set aside or enjoined the IFR
on procedural grounds. 86 FR 3608, 3612.
On January 14, 2021, the Department published a final rule entitled
Strengthening Wage Protections for the Temporary and Permanent
Employment of Certain Aliens in the United States, with an effective
date of March 15, 2021. 86 FR 3608. With this final rule, the
Department adopted a number of modifications to the wage methodology
established by the IFR. In particular, the Department adjusted the
Level I wage and the Level IV wage downward to the 35th percentile and
90th percentile, respectively. Under the final rule, the Department
continues to calculate the two intermediate wage levels in accordance
with 8 U.S.C. 1182(p)(4), establishing the prevailing wage for Levels I
through IV, respectively, at approximately the 35th percentile, the
53rd percentile, the 72nd percentile, and the 90th percentile. 86 FR
3608, 3653-3654. However, the Department included two sets of
transition periods under which these adjustments to the new wage levels
will not begin until July 1, 2021. 86 FR 3608, 3642. For most job
opportunities, the transition would occur in two steps and conclude on
July 1, 2022. For job opportunities that will be filled by workers who
are the beneficiary of an approved Immigrant Petition for Alien Worker,
or successor form, or are eligible for an extension of their H-1B
status under sections 106(a) and (b) of the American Competitiveness in
the Twenty-first Century Act of 2000, Public Law 106-313, as amended by
the 21st Century Department of Justice Appropriations Authorization
Act, Public Law 107-273 (2002), the transition would occur in four
steps and conclude on July 1, 2024. 86 FR 3608, 3660.
On March 12, 2021, based on public comments received on the
Department's proposal to delay the effective date of the rule for a
period of 60 days to begin reviewing questions of fact, law, and policy
raised in the final rule, the Department published a final rule
delaying the effective date of the final rule until May 14, 2021. 86 FR
13995. The Department acknowledged concerns that were raised by the
commenters as well as in pending litigation challenging the
Department's IFR, and, subsequently, the final rule published on
January 14, 2021. The Department explained that it had already begun
its comprehensive review of this rulemaking and may need to take
additional action as necessary to complete such a review. See 86 FR
13995, 13997. The Department subsequently issued a notice of proposed
rulemaking on March 22, 2021, to further delay the effective date of
the final rule by eighteen months or until November 14, 2022, along
with corresponding proposed delays to the rule's transition dates. 86
FR 15154, 15154. The Department explained that the proposal is intended
to provide a sufficient amount of time to thoroughly consider the legal
and policy issues raised in the rule, provide time to compute and
validate prevailing wage data and take other steps to allow for an
orderly implementation, and offer the public, through the issuance of
this RFI, an opportunity to provide information on the sources and
methods for determining prevailing wage levels, which could be used to
inform potential new proposal(s) to amend ETA's regulations governing
prevailing wages for PERM, H-1B, H-1B1, and E-3 job opportunities. See
86 FR 15154, 15155.
III. Request for Public Comment
Through this RFI, the Department is soliciting public input on the
available sources of data and methodologies that can be used in
computing different levels of wages based on the OES wage survey,
commensurate with experience, education, and level of supervision for a
specific occupation and geographic area. Submissions may include, but
are not limited to, written narratives that answer the questions
presented in this RFI, quantitative or qualitative data analysis,
reports or studies, and other estimation techniques and methodologies,
whether published or unpublished, relevant to determining wage values
or levels within a specific occupational wage distribution and
geographic area.
Responses to this RFI are voluntary and may be submitted
anonymously. Written narratives providing factual or evidence-based
information should also provide citations of sources, and copies of and
links to the source material should be provided. If primary sources are
used, such as reports, research studies, or other sources of
quantitative or qualitative data, the Department is requesting that
responders provide details on the data-gathering techniques or
methodologies and any supporting technical documentation. For example,
input related to occupational wage sources and methods will be most
useful if the responder explains, in detail, the type of information
provided, the particular value of that information for determining
prevailing wage levels, the methodology used to obtain the information,
and the contexts in which the information can and cannot be obtained on
a consistent basis. The Department also welcomes information that
explains why a particular methodology or data source to determine wage
values or levels should not be used.
Please do not include any personally identifiable information or
any
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information that you do not wish to make public. Proprietary,
classified, confidential, or sensitive information should not be
included in your response. The information received in response to this
RFI will inform and be considered by the Department as it reviews the
final rule published in the Federal Register on January 14, 2021, 86 FR
3608, which may result in the development of a future notice of
proposed rulemaking to revise the computation of prevailing wage levels
in a manner that is consistent with the INA and more effectively
ensures the employment of certain immigrant and nonimmigrant workers
does not adversely affect the wages of U.S. workers similarly employed.
Accordingly, the Department invites the public to answer one or more of
the following questions in their submissions:
1. What sources of data and methods are available that can be
used alone, or in conjunction with other sources and methods, to
approximate the wage level within an occupational wage distribution
based on the OES wage survey and takes into account education,
experience, and level of supervision for U.S. workers similarly
employed across industries for specific occupation(s) and geographic
area(s)?
2. Besides the OES wage survey, what other sources of data and
methods are available that can be used alone, or in conjunction with
other sources and methods, to approximate wage levels, by occupation
and geographic area, specifically for U.S. workers similarly
employed at institutions of higher education, nonprofit entities
related to or affiliated with such institutions, nonprofit research
organizations and Governmental research organizations?
3. Should the Department continue to set wage levels at the same
point within the OES distribution for all occupations and geographic
areas or, alternatively, set wage levels at different points within
the OES distribution for different groups of occupations and/or
geographic areas? If the latter, what sources of data and methods
are available that can be used alone, or in conjunction with other
sources and methods, to approximate different wage levels for
different groups of occupations, taking into account education,
experience, and level of supervision for U.S. workers similarly
employed across industries and geographic areas?
4. Other than computation of an arithmetic mean or specific
percentile within an occupational wage distribution based on the OES
wage survey, are there any other statistical approaches or
estimation techniques the Department should consider when computing
the wage level(s) for occupation(s) and geographic area(s)?
IV. Conclusion
The Department invites interested parties to submit comments,
information, data, and supporting materials based on the questions
provided in this RFI. The Department has provided the list of questions
above as a framework for the scope of this RFI and invites any
submission that addresses those questions and provides useful
information for the Department's consideration from all interested
stakeholders, including members of the public, worker advocacy
organizations and labor unions, employers, trade associations, public
advocacy organizations, and others, including universities and research
institutions, familiar with or interested in the prevailing wage
determination methodology used in the PERM, H-1B, H-1B1, and E-3
programs.
Suzan G. LeVine,
Principal Deputy Assistant Secretary for Employment and Training,
Labor.
[FR Doc. 2021-06889 Filed 4-1-21; 8:45 am]
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