[Federal Register Volume 86, Number 47 (Friday, March 12, 2021)]
[Rules and Regulations]
[Pages 13995-13998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05269]


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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 Date

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Final rule; delay of effective date.

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SUMMARY: On February 1, 2021, the Department of Labor (DOL or 
Department) proposed to delay the effective date of the final rule 
entitled ``Strengthening Wage Protections for the Temporary and 
Permanent Employment of Certain Aliens in the United States,'' 
published in the Federal Register on January 14, 2021, for a period of 
60 days. The Department proposed to delay the effective date of the 
final rule until May 14, 2021, in accordance with 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.'' As stated in the proposal, the 60-day delay 
would allow agency officials the opportunity to review any questions of 
fact, law, or policy. The Department invited written comments from the 
public for 15 days on the proposed delay of effective date. All 
comments had to be received by February 16, 2021. The Department 
received 57 comments from the stakeholder community. 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 60 days.

DATES: As of March 12, 2021, the effective date of the final rule 
published on January 14, 2021, at 86 FR 3608, is delayed until May 14, 
2021.

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 and Basis for Proposed Delay

    On January 14, 2021, the Department published a final rule in the 
Federal Register, which adopted with changes an Interim Final Rule 
(IFR) that amended Employment and Training Administration (ETA) 
regulations governing the prevailing wages for 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 non-immigrant 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). 86 FR 3608. Although the final rule contained 
an effective date of March 15, 2021, the Department also included a 
delayed implementation period under which adjustments to the new wage 
levels will not begin until July 1, 2021. 86 FR 3608, 3642. 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.
    On February 1, 2021, the Department published a notice in the 
Federal Register proposing to delay the effective date of the final 
rule for 60 days from March 15, 2021, until May 14, 2021. The 
Department based this action on the Presidential directive as expressed 
in the memorandum of January 20, 2021, from the Assistant to the 
President and Chief of Staff, entitled ``Regulatory Freeze Pending 
Review.'' The memorandum directs agencies to consider delaying the 
effective date for regulations for the purpose of reviewing questions 
of fact, law, and policy raised therein. Accordingly, ETA proposed to 
delay the effective date for the final rule entitled ``Strengthening 
Wage Protections for the Temporary and Permanent Employment of Certain 
Aliens in the United States'' to May 14, 2021, given the complexity of 
the regulation.

II. Public Comments Received

    The Department invited written comment in its February 1, 2021 
notice on its proposal to delay the effective date of the final rule, 
including the proposed delay's impact on any legal, factual, or policy 
issues raised by the underlying final rule and whether further review 
of those issues warrants such a delay. The Department further stated 
that all other comments on the underlying final rule would be 
considered to be outside the scope of this rulemaking. The February 1, 
2021 notice provided a 15-day comment period on the proposed delay, 
with comments to be submitted electronically at http://www.regulations.gov/ using docket number ETA-2020-0006.
    ETA received 57 unique comments on its proposal to delay the 
effective date by 60 days to May 14, 2021. Of the 57 comments, 36 were 
reviewed and determined out of scope either because they were comments 
exclusively on the final rule and did not address the proposed delay, 
concerned another agency's rule, or were general statements. The 
remaining 21 comments were reviewed and determined within the scope of 
the request for comments. Of these, 17 commenters supported the delay. 
Four commenters opposed the delay based on their overall support of the 
final rule.

A. Comments Supporting a Delayed Effective Date

    Seventeen commenters supported the proposed delay of the effective 
date of the final rule, citing disapproval of the final rule overall, 
concerns that the process in adopting the final rule was rushed, fears 
that the wage data supporting the final rule was inaccurate, and the 
need to more thoroughly review the final rule. One commenter stated it 
is in favor of the proposed delay of effective date and provided a 
policy

[[Page 13996]]

report to assist the agency in evaluating the ``proposed delay's impact 
on any legal, factual, or policy issues raised by the underlying 
rule.'' Several commenters expressed strong support of the Department's 
proposal, and a few commenters encouraged the agency to conduct a full 
legal review and ``consider and meaningfully respond'' to the issues 
raised in the IFR comments before implementing any changes to wage 
requirements.
    The Department received two comments stating the delay of effective 
date is needed because the final rule is not reflective of the policy 
objectives of the Biden Administration. The two commenters, a trade 
organization and a trade association, supported the proposed effective 
date delay, reasoning that, consistent with the Biden Administration's 
``Regulatory Freeze Pending Review'' memorandum, it would provide time 
to evaluate questions of fact, law, and policy raised in the final 
rule. One of the commenters argued that events and developments that 
have occurred since the Department published the final rule on January 
14, 2021, should be reviewed as relevant questions of fact, law, and 
policy. Two universities supported the effective date delay stating the 
delay will give the Department more time to evaluate policy and 
substantive issues of the final rule, including determining the needs 
of the U.S. economy in light of the current context of the pandemic and 
the Biden Administration's priorities. Two trade associations supported 
postponing implementation of the final rule, with one association 
stating this delay would allow for proper stakeholder input while 
maintaining the status quo for employers.
    In addition, the Department received five comments stating the 
proposed delay is needed for the Department to address legal concerns 
raised by stakeholders and litigants in litigation related to the IFR 
and final rule. For example, a professional association asserted the 
final rule violated the Administrative Procedure Act's (APA) notice-
and-comment requirements and argued that the final rule must be delayed 
in order to provide a proper notice-and-comment period. Another 
professional association and a trade association argued, for instance, 
that the final rule did not address concerns they raised in prior 
comments on the IFR and supported delaying the final rule's effective 
date and compliance dates to allow time for review and reconsideration 
of the final rule's ``legal and policy shortcomings'' and issues raised 
by the stakeholder community. The Department also received three 
comments supporting a delay of the effective date to allow the agency 
an opportunity to review decisions issued by multiple courts in 
litigation related to the rulemaking. For example, a trade association 
explained the proposed 60-day delay will enable the agency to review 
the final rule and determine it is ``unjustified, ignores labor market 
realities, and would harm the country's economic recovery.'' The 
commenter stated in the event the Department does not make such a 
determination, the delay is needed for courts to render final decisions 
in related litigation.
    Several comments supported the proposed delay on the basis that the 
additional time will allow the Department to review more thoroughly the 
final rule and its financial implications for affected industries, 
including businesses and institutions of higher education, and its 
impact on the economy. One commenter in this category urged the agency 
to begin rulemaking to withdraw the final rule.
    Lastly, a few comments requested the Department consider further 
delay of the effective date and/or the compliance dates of the final 
rule. For example, a trade association stated that given the profound 
changes in the Department's final rule, a May 14, 2021 effective date 
is unlikely to avoid significant operational disruptions for many 
businesses that rely upon various immigrant and non-immigrant workers. 
Other comments requested the Department delay the July 1, 2021 
transition period to afford the regulated community adequate time to 
adopt necessary changes and to allow the agency enough time to properly 
implement forms and electronic filing system changes, as needed.
    The Department appreciates the comments received. After carefully 
reviewing the comments, the Department acknowledges the substantive 
concerns raised by these commenters, including concerns regarding the 
Department's methodology in the final rule and notice and comment 
procedures related to the rulemaking, and the commenters' suggestion 
that the Department should delay the effective date of this rule to 
review the rulemaking. Given these concerns, the complexity of the 
regulation, and the issues raised in the litigation challenging the 
rulemaking, the Department has determined that a 60-day delay of the 
effective date is needed to provide the Department time to continue its 
review of the final rule, including evaluating the concerns raised by 
the commenters and taking additional action as necessary.

B. Comments Opposing a Delayed Effective Date

    The Department received four comments that directly addressed and 
subsequently opposed the proposed delay of the effective date of the 
final rule. Four commenters stated they generally support the substance 
of the final rule, and reiterated reasons why the final rule should be 
implemented. One of the commenters stated it believes the reforms to 
the Department's wage levels are long overdue and a delay would prevent 
protections for workers being implemented and reduce job opportunities 
and wages. It noted that the current wage methodology is in conflict 
with the INA and further explained that, while it generally supported 
the final rule as a step in the right direction, the final rule still 
conflicts with the INA. A commenter opposed the delay because it 
supports the methodology used in the final rule and believes a delay 
could cause uncertainty in hiring processes as well as reduce the 
amount of time employers have to prepare for compliance. This commenter 
further stated that the current methodology is on ``shaky legal 
ground.''
    The Department appreciates the comments provided. In response to 
comments concerning the impact of the Department's proposed delay of 
effective date of the final rule on U.S. workers, the delay of the 
effective date should not reduce any potential benefits to, or 
otherwise harm, qualified American or H-1B workers. Under the final 
rule, the new methodology and attendant changes to the wage level 
computations will not begin to be implemented until July 1, 2021; 
before July 1, the current wage methodology remains the same. Rather, 
as noted in the proposal and above, delaying the effective date for 60 
days would provide the Department an opportunity to review questions of 
fact, law, and policy raised by the final rule. As noted above, one 
commenter stated the final rule was a step in the right direction but 
nonetheless ``continues to conflict'' with the INA, providing an 
example as to why review at this stage is crucial. The 60-day delay 
announced in this final rule provides the Department time to begin a 
meaningful review without affecting workers. Finally, the Department 
may need to propose a further delay of the effective date and 
accompanying implementation periods due to the complexity of the final 
rule, as discussed in the Conclusion below, and aims to provide clarity 
and sufficient time for employers to comply with the regulations.

[[Page 13997]]

C. Out of Scope Comments

    Thirty-six comments were beyond the scope of this action. Most of 
the comments related to the content of the final rule and the final 
rule's methodology rather than the narrow issue of the proposed delay 
of the effective date. Of particular note, three commenters simply 
stated they disagreed but it is unclear with what they disagreed. To 
the extent that they refer only to the proposed extension of the 
effective date these comments do not alter DOL's conclusion given their 
lack of rationale and the reasons noted above for extending the 
effective date. Two comments appeared to be directed at a proposed rule 
from U.S. Citizenship and Immigration Services, and are therefore out 
of scope. Finally one commenter submitted a resume, and nothing else.

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 both impracticable and 
unnecessary. 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 
March 15, 2021, before the delay in this rulemaking would begin. 
Accordingly, a 30-day period would undermine the purpose for which this 
rule is being promulgated and result in additional confusion for 
regulated entities. As such, the Department finds that it has good 
cause to make this rule effective immediately upon publication.

E. Conclusion

    Many of the comments specifically addressed substantive concerns 
related to the Department's publication of the final rule and the 
methodology or computations contained therein. The Department 
acknowledges these public comments as well as concerns that have been 
raised by the commenters and in pending litigation challenging the 
Department's IFR, see 86 FR 3608, 3612 (discussing lawsuits and court 
orders setting aside the IFR), and, subsequently, the final rule 
published on January 14, 2021. The Department has already begun its 
comprehensive review of this rulemaking and may need to take additional 
action as necessary to complete such a review. In particular, the 
comments raised thus far suggest that it may be helpful for the 
Department to issue a request for information soliciting public input 
on other sources of information and/or methodologies that could be used 
to inform any new proposal(s) to further amend ETA's regulations 
governing the prevailing wages for PERM, H-1B, H-1B1, and E-3 job 
opportunities as the comments raised thus far suggest that additional 
information and data may be useful in the Department's review. In 
addition, in light of the complexity of this issue, the Department is 
considering whether to propose a further delay of the final rule's 
effective date and accompanying implementation periods that are 
currently scheduled to take effect on May 14, 2021, and July 1, 2021, 
respectively. Before further delaying the effective date and 
implementation periods, the Department will provide the public an 
opportunity to comment.

III. Statutory and Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review)

    Under Executive Order (E.O.) 12866, the Office of Management and 
Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) 
determines whether a regulatory action is significant and, therefore, 
subject to the requirements of the E.O. and review by OMB. 58 FR 51735. 
Section 3(f) of E.O. 12866 defines a ``significant regulatory action'' 
as an action that is likely to result in a rule that: (1) Has an annual 
effect on the economy of $100 million or more, or adversely affects in 
a material way a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities (also referred to as economically 
significant); (2) creates serious inconsistency or otherwise interferes 
with an action taken or planned by another agency; (3) materially 
alters the budgetary impacts of entitlement grants, user fees, or loan 
programs, or the rights and obligations of recipients thereof; or (4) 
raises novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the E.O. Id. 
Pursuant to E.O. 12866, OIRA has determined that this is not a 
significant regulatory action. Pursuant to the Congressional Review Act 
(5 U.S.C. 801 et seq.), OIRA has determined that this rule is not a 
``major rule,'' as defined by 5 U.S.C. 804(2).

B. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in a $100 million or more expenditure (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector. The inflation-
adjusted value equivalent of $100 million in 1995 adjusted for 
inflation to 2019 levels by the Consumer Price Index for All Urban 
Consumers (CPI-U) is approximately $168 million based on the Consumer 
Price Index for All Urban Consumers.\1\
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    \1\ See U.S. Bureau of Labor Statistics, Historical Consumer 
Price Index for All Urban Consumers (CPI-U): U.S. City Average, All 
Items, available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202003.pdf (last visited June 2, 2020).
    Calculation of inflation: (1) Calculate the average monthly CPI-
U for the reference year (1995) and the current year (2019); (2) 
Subtract reference year CPI-U from current year CPI-U; (3) Divide 
the difference of the reference year CPI-U and current year CPI-U by 
the reference year CPI-U; (4) Multiply by 100 = [(Average monthly 
CPI-U for 2019-Average monthly CPI-U for 1995)/(Average monthly CPI-
U for 1995)] * 100 = [(255.657-152.383)/152.383] * 100 = (103.274/
152.383) * 100 = 0.6777 * 100 = 67.77 percent = 68 percent 
(rounded). Calculation of inflation-adjusted value: $100 million in 
1995 dollars * 1.68 = $168 million in 2019 dollars.
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    This rulemaking is not a ``Federal mandate'' as defined for UMRA 
purposes.\2\ 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.\3\ 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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    \2\ See 2 U.S.C. 658(6).
    \3\ See 2 U.S.C. 658(7)(A)(ii).
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C. Congressional Review Act

    OIRA has determined that this final rule is not 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

[[Page 13998]]

Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, 110 
Stat. 847, 868, et seq.

D. 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.

E. 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.

F. 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.

G. 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.

Suzan G. LeVine,
Principal Deputy Assistant Secretary for Employment and Training, 
Labor.
[FR Doc. 2021-05269 Filed 3-11-21; 8:45 am]
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