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
| Citation | 86 FR 26164 |
| Record Number | 2021-10084 |
| Published date | 13 May 2021 |
| Section | Rules and Regulations |
| Court | Employment And Training Administration |
Federal Register, Volume 86 Issue 91 (Thursday, May 13, 2021)
[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 http://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 http://www.flcdatacenter.com, as well as the FLAG system used to assign the
leveled prevailing wages and issue official PWDs for each occupation
and geographic area to employers. The final process for OFLC to load,
thoroughly test, and implement the official prevailing wage data takes
up to an additional one month.
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.
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\1\ The 2021 Final Rule was published in the Federal Register on
January 14, 2021. 86 FR 3608, 3608-3611.
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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]
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.
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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.
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\4\ See 2 U.S.C. 658(6).
\5\ See 2 U.S.C. 658(7)(A)(ii).
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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
