[Federal Register Volume 86, Number 62 (Friday, April 2, 2021)]
[Proposed Rules]
[Pages 17343-17346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06889]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 655 and 656

[Docket No. ETA-2021-0003]
RIN 1205-AC00


Request for Information on Data Sources and Methods for 
Determining Prevailing Wage Levels for the Temporary and Permanent 
Employment of Certain Immigrants and Non-Immigrants in the United 
States

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Request for information (RFI).

-----------------------------------------------------------------------

SUMMARY: The Department of Labor (Department) invites interested 
parties to provide information on the sources of data and methodologies 
for determining prevailing wage levels covering employment 
opportunities that United States (U.S.) employers seek to fill with 
foreign workers on a permanent or temporary basis through certain 
employment-based immigrant visas or through H-1B, H-1B1, E-3 
nonimmigrant visas. The information received in response to this RFI 
will inform and be considered by the Department as it reviews the final 
rule entitled Strengthening Wage Protections for the Temporary and 
Permanent Employment of Certain Aliens in the United States, published 
in the Federal Register on January 14, 2021, which may result in the 
development of a future notice of proposed rulemaking to revise the 
computation of prevailing wage levels in a manner that more effectively 
ensures the employment of certain immigrant and nonimmigrant workers 
does not adversely affect the wages of U.S. workers similarly employed.

DATES: Submit written comments on or before June 1, 2021.

ADDRESSES: You may submit written comments electronically by the 
following method:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions on the website for submitting comments.
    Instructions. Include the docket number ETA-2021-0003 in your 
comments. All comments received will be posted without change to http://www.regulations.gov. Please do not include any personally identifiable 
or confidential business information you do not want publicly 
disclosed.

FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office 
of Foreign Labor Certification, Employment and Training Administration, 
Department of Labor, 200 Constitution Avenue NW, Room N-5311, 
Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access 
the telephone numbers above via TTY/TDD by calling the toll-free 
Federal Information Relay Service at 1 (877) 889-5627.

SUPPLEMENTARY INFORMATION:

I. Background

    The Immigration and Nationality Act (INA), as amended, assigns 
certain responsibilities to the Secretary of Labor (Secretary) relating 
to wages and working conditions of certain categories of immigrant and 
nonimmigrant foreign workers.\1\ The Secretary issues permanent labor 
certifications for certain employment-based immigrants and certifies 
labor condition applications (LCAs) for the temporary employment of 
foreign workers in specialty occupations under the H-1B, H-1B1, and E-3 
visa classifications.\2\ A specialty occupation is an occupation that 
requires theoretical and practical application of a body of highly 
specialized knowledge and the attainment of a bachelor's or higher 
degree in the specific specialty, or its equivalent, as a minimum for 
entry into the occupation in the United States.\3\
---------------------------------------------------------------------------

    \1\ There are two general categories of U.S. visas: Immigrant 
and nonimmigrant. Immigrant visas are issued to foreign nationals 
who intend to live permanently in the U.S. Nonimmigrant visas are 
for foreign nationals who enter the U.S. on a temporary basis--for 
tourism, medical treatment, business, temporary work, study, or 
other reasons.
    \2\ 8 U.S.C. 1101(a)(15)(E)(iii), (a)(15)(H)(i)(b), 
(a)(15)(H)(i)(b1).
    \3\ See 8 U.S.C 1184(i).
---------------------------------------------------------------------------

    The Department may issue a permanent labor certification only after 
a determination that employment of the foreign worker will not 
adversely affect the wages and working conditions of U.S. workers 
similarly employed.\4\ Employers seeking to employ an immigrant foreign 
worker on a permanent basis must attest that they will pay at least the 
prevailing wage and obtain a Prevailing Wage Determination (PWD) for 
the job opportunity from the Department.\5\ Similarly, employers 
seeking to employ a nonimmigrant foreign worker on a temporary basis 
under the H-1B, H-1B1, or E-3 programs must attest that they will pay 
the higher of the actual wage paid to employees with similar experience 
and qualifications or the prevailing wage for

[[Page 17344]]

the occupational classification in the area of intended employment.\6\ 
These employers may obtain a PWD from the Department, but have the 
option to use other sources, including a compliant employer-provided 
wage survey, to determine the prevailing wage.\7\ A general overview of 
the labor certification and prevailing wage process, as well as further 
background on the rulemaking, is available in the Department's Final 
Rule published in the Federal Register on January 14, 2021, and will 
not be restated herein. 86 FR 3608, 3608-3611.
---------------------------------------------------------------------------

    \4\ 8 U.S.C. 1182(a)(5)(A)(i)(II).
    \5\ 20 CFR 656.10(c)(1), 656.15(b)(1), and 656.40(a).
    \6\ 8 U.S.C. 1182(n)(1)(A), (t)(1)(A); 20 CFR 655.731(a).
    \7\ 20 CFR 655.731(a)(2)(ii)(A)-(C).
---------------------------------------------------------------------------

II. Prevailing Wage Background

A. The Department's Prevailing Wage Determination Methodology

    The Department has long relied on BLS's OES data to establish 
prevailing wage levels. The OES is a comprehensive, statistically valid 
survey that is currently used for satisfying the Department's purposes 
in setting wages in most immigrant and nonimmigrant programs. The OES 
wage survey is among the largest continuous statistical survey programs 
of the Federal Government. BLS produces the survey materials and 
selects the nonfarm establishments to be surveyed using the list of 
establishments maintained by State Workforce Agencies (SWAs) for 
unemployment insurance purposes. The OES collects data from over one 
million establishments. Salary levels based on geographic areas are 
available at the national and State levels and for certain territories 
in which statistical validity can be ascertained, including the 
District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands. 
Salary information is also made available at the metropolitan and 
nonmetropolitan area levels within a State. Wages for the OES survey 
are straight-time, gross pay, exclusive of premium pay. Base rate, 
cost-of-living allowances, guaranteed pay, hazardous duty pay, 
incentive pay including commissions and production bonuses, tips, and 
on-call pay are included. The Department continues to believe the 
inclusion of all the features described above make the OES a valuable 
source for use in many of the Department's foreign labor programs.\8\
---------------------------------------------------------------------------

    \8\ Wage Methodology for the Temporary Non-agricultural 
Employment H-2B Program, 76 FR 3452, 3458 (Jan. 19, 2011).
---------------------------------------------------------------------------

    The Department incorporated the wage component of the OES survey 
into its prevailing wage guidance in 1997.\9\ At the time, the 
Department divided OES wage data into two skill levels: a Level I wage 
for ``beginning level employees'' and a Level II wage for ``fully 
competent employees.'' Because the OES survey does not provide data 
about skill differentials within Standard Occupational Classification 
(SOC) codes, the Department established the entry and experienced skill 
levels mathematically.\10\ Specifically, under a Memorandum of 
Understanding, BLS computed a Level I wage calculated as the mean of 
the lowest paid one-third of workers in a given occupation and a Level 
IV wage calculated as the mean wage of the highest paid upper two-
thirds of workers.\11\
---------------------------------------------------------------------------

    \9\ Prevailing Wage Policy for Nonagricultural Immigration 
Programs, General Administration Letter No. 2-98 (GAL 2-98) (Oct. 
31, 1997), available at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=942.
    \10\ GAL 2-98 at 5.
    \11\ Intra-Agency Memorandum of Understanding executed by Mr. 
John R. Beverly, III, Director, U.S. Employment Service, ETA, and 
Ms. Katharine Newman, Chief, Division of Financial Planning and 
Management, Office of Administration, BLS (Sept. 30, 1998).
---------------------------------------------------------------------------

    In the H-1B Visa Reform Act of 2004, Congress amended the INA to 
provide that where the Department ``uses, or makes available to 
employers, a governmental survey to determine the prevailing wage, such 
survey shall provide at least 4 levels of wages commensurate with 
experience, education, and the level of supervision.'' \12\ Further, 
the amendment provided that where the ``survey has only 2 levels, 2 
intermediate levels may be created by dividing by 3, the difference 
between the 2 levels offered, adding the quotient thus obtained to the 
first level and subtracting that quotient from the second level.'' \13\
---------------------------------------------------------------------------

    \12\ Consolidated Appropriations Act, 2005, Public Law 108-447, 
div. J, tit. IV, Sec.  423; 118 Stat. 2809 (Dec. 8, 2004).
    \13\ See 8 U.S.C. 1182(p)(4).
---------------------------------------------------------------------------

    In order to implement the INA's four-tier prevailing wage 
provision, the Department published comprehensive Prevailing Wage 
Determination Policy Guidance for Nonagricultural Immigration Programs 
(2005 Guidance), which expanded the two-tier OES wage level system to 
provide four ``skill levels:'' Level I ``entry level,'' Level II 
``qualified,'' Level III ``experienced,'' and Level IV ``fully 
competent.'' \14\ The Department applied the formula in the INA to its 
two existing wage levels to set Levels I through IV.\15\ In 2010, the 
Department centralized the prevailing wage determination process for 
nonagricultural labor certification programs within OFLC's National 
Prevailing Wage Center (NPWC).\16\ In preparation for this transition, 
the Department issued new Prevailing Wage Determination Policy Guidance 
for Nonagricultural Immigration Programs (2009 Guidance).\17\ This 
guidance currently governs OFLC's PWD process for the PERM, H-1B, H-
1B1, and E-3 visa programs.
---------------------------------------------------------------------------

    \14\ Employment and Training Administration, Prevailing Wage 
Determination Policy Guidance, Nonagricultural Immigration Programs, 
at 7 (May 2005)(hereinafter 2005 Guidance), available at https://www.foreignlaborcert.doleta.gov/pdf/policy_nonag_progs.pdf; see also 
85 FR 63872, 63874-63876 for a discussion of the development of the 
prevailing wage determination process.
    \15\ 2005 Guidance at 1.
    \16\ See Labor Certification Process and Enforcement for 
Temporary Employment in Occupations Other Than Agriculture or 
Registered Nursing in the United States (H-2B Workers), and Other 
Technical Changes, 73 FR 78020 (Dec. 19, 2008); Prevailing Wage 
Determinations for Use in the H-1B, H-1B1 (Chile/Singapore), H-1C, 
H-2B, E-3 (Australia), and Permanent Labor Certification Programs; 
Prevailing Wage Determinations for Use in the Commonwealth of the 
Northern Mariana Islands, 74 FR 63796 (Dec. 4, 2009).
    \17\ Employment and Training Administration Prevailing Wage 
Determination Policy Guidance, Nonagricultural Immigration Programs 
(revised Nov. 2009) (hereinafter 2009 Guidance), available at 
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.
---------------------------------------------------------------------------

    When assigning a prevailing wage using OES data, the NPWC examines 
the nature of the job offer, the area of intended employment, and the 
job duties for workers that are similarly employed.\18\ In particular, 
the NPWC uses the SOC taxonomy to classify the employer's job 
opportunity into an occupation by comparing the employer's job 
description, title, and requirements to occupational information 
provided in sources like the Department's Occupational Information 
Network (O*Net).\19\ Once the NPWC identifies the applicable SOC code, 
it determines the appropriate wage level for the job opportunity by 
comparing the employer's job description, title, and requirements to 
those normally required for the occupation, as reported in sources like 
O*Net. This determination involves a step-by-step process in which each 
job opportunity begins at Level I (entry level) and may progress to 
Level II (experienced), Level III (qualified), or Level IV (fully 
competent) based on the NPWC's comparison of the job opportunity to 
occupational requirements, including the education, training, 
experience, skills, knowledge,

[[Page 17345]]

and tasks required in the occupation.\20\ After determining the 
prevailing wage level, the NPWC issues a PWD to the employer using the 
OES wage for that level in the occupation and area of intended 
employment.
---------------------------------------------------------------------------

    \18\ Id. at 3.
    \19\ Id. at 1-7; see also Occupational Information Network, 
available at http://online.onetcenter.org. O*Net provides 
information on skills, abilities, knowledge, tasks, work activities, 
and specific vocational preparation levels associated with 
occupations and stratifies occupations based on shared skill, 
education, and training indicators.
    \20\ 2009 Guidance at 6.
---------------------------------------------------------------------------

B. Procedural History Revising the Computation of Prevailing Wage 
Levels Based on the OES Survey

    On October 8, 2020, the Department's Employment and Training 
Administration (ETA), published an Interim Final Rule (IFR), 85 FR 
63872, revising the methodology the Department uses to determine 
prevailing wage levels for the H-1B, H-1B1, E-3, and PERM programs. 
Because the Department determined that the existing wage levels were 
artificially low and provided an opportunity for employers to hire and 
retain foreign workers at wages well below what their U.S. counterparts 
earn, the Department revised wage provisions at 20 CFR 655.731 and 
656.40 to adjust the existing wage levels. 85 FR 63872, 63877. 
Specifically, the Department adjusted the four wage levels, 
respectively, from approximately the 17th, 34th, 50th, and 67th 
percentiles to approximately the 45th, 62nd, 78th, and 95th 
percentiles. 85 FR 63872, 63888-63894.
    The Department also determined that it had good cause to issue the 
IFR without prior notice and opportunity for the public to comment. 85 
FR 63872, 63898. The Department published the IFR with an immediate 
effective date, but provided for the submission of public comments 
during a prescribed 30-day public comment period that closed on 
November 9, 2020. During this 30-day period, the Department received 
2,340 comments. Several commenters supported the IFR because they 
thought that it established wages more closely aligned with actual wage 
levels and would prevent abuse of the program by those employers and 
their clients seeking to use the H-1B program as a lower cost 
alternative to hiring U.S. workers. However, most commenters opposing 
the IFR expressed concern that the revised wage levels did not 
correspond to wages paid to U.S. workers similarly employed. Four 
groups of plaintiffs separately challenged the IFR and, in each case, 
the district court entered an order that set aside or enjoined the IFR 
on procedural grounds. 86 FR 3608, 3612.
    On January 14, 2021, the Department published a final rule entitled 
Strengthening Wage Protections for the Temporary and Permanent 
Employment of Certain Aliens in the United States, with an effective 
date of March 15, 2021. 86 FR 3608. With this final rule, the 
Department adopted a number of modifications to the wage methodology 
established by the IFR. In particular, the Department adjusted the 
Level I wage and the Level IV wage downward to the 35th percentile and 
90th percentile, respectively. Under the final rule, the Department 
continues to calculate the two intermediate wage levels in accordance 
with 8 U.S.C. 1182(p)(4), establishing the prevailing wage for Levels I 
through IV, respectively, at approximately the 35th percentile, the 
53rd percentile, the 72nd percentile, and the 90th percentile. 86 FR 
3608, 3653-3654. However, the Department included two sets of 
transition periods under which these adjustments to the new wage levels 
will not begin until July 1, 2021. 86 FR 3608, 3642. For most job 
opportunities, the transition would occur in two steps and conclude on 
July 1, 2022. For job opportunities that will be filled by workers who 
are the beneficiary of an approved Immigrant Petition for Alien Worker, 
or successor form, or are eligible for an extension of their H-1B 
status under sections 106(a) and (b) of the American Competitiveness in 
the Twenty-first Century Act of 2000, Public Law 106-313, as amended by 
the 21st Century Department of Justice Appropriations Authorization 
Act, Public Law 107-273 (2002), the transition would occur in four 
steps and conclude on July 1, 2024. 86 FR 3608, 3660.
    On March 12, 2021, based on public comments received on the 
Department's proposal to delay the effective date of the rule for a 
period of 60 days to begin reviewing questions of fact, law, and policy 
raised in the final rule, the Department published a final rule 
delaying the effective date of the final rule until May 14, 2021. 86 FR 
13995. The Department acknowledged concerns that were raised by the 
commenters as well as in pending litigation challenging the 
Department's IFR, and, subsequently, the final rule published on 
January 14, 2021. The Department explained that it had already begun 
its comprehensive review of this rulemaking and may need to take 
additional action as necessary to complete such a review. See 86 FR 
13995, 13997. The Department subsequently issued a notice of proposed 
rulemaking on March 22, 2021, to further delay the effective date of 
the final rule by eighteen months or until November 14, 2022, along 
with corresponding proposed delays to the rule's transition dates. 86 
FR 15154, 15154. The Department explained that the proposal is intended 
to provide a sufficient amount of time to thoroughly consider the legal 
and policy issues raised in the rule, provide time to compute and 
validate prevailing wage data and take other steps to allow for an 
orderly implementation, and offer the public, through the issuance of 
this RFI, an opportunity to provide information on the sources and 
methods for determining prevailing wage levels, which could be used to 
inform potential new proposal(s) to amend ETA's regulations governing 
prevailing wages for PERM, H-1B, H-1B1, and E-3 job opportunities. See 
86 FR 15154, 15155.

III. Request for Public Comment

    Through this RFI, the Department is soliciting public input on the 
available sources of data and methodologies that can be used in 
computing different levels of wages based on the OES wage survey, 
commensurate with experience, education, and level of supervision for a 
specific occupation and geographic area. Submissions may include, but 
are not limited to, written narratives that answer the questions 
presented in this RFI, quantitative or qualitative data analysis, 
reports or studies, and other estimation techniques and methodologies, 
whether published or unpublished, relevant to determining wage values 
or levels within a specific occupational wage distribution and 
geographic area.
    Responses to this RFI are voluntary and may be submitted 
anonymously. Written narratives providing factual or evidence-based 
information should also provide citations of sources, and copies of and 
links to the source material should be provided. If primary sources are 
used, such as reports, research studies, or other sources of 
quantitative or qualitative data, the Department is requesting that 
responders provide details on the data-gathering techniques or 
methodologies and any supporting technical documentation. For example, 
input related to occupational wage sources and methods will be most 
useful if the responder explains, in detail, the type of information 
provided, the particular value of that information for determining 
prevailing wage levels, the methodology used to obtain the information, 
and the contexts in which the information can and cannot be obtained on 
a consistent basis. The Department also welcomes information that 
explains why a particular methodology or data source to determine wage 
values or levels should not be used.
    Please do not include any personally identifiable information or 
any

[[Page 17346]]

information that you do not wish to make public. Proprietary, 
classified, confidential, or sensitive information should not be 
included in your response. The information received in response to this 
RFI will inform and be considered by the Department as it reviews the 
final rule published in the Federal Register on January 14, 2021, 86 FR 
3608, which may result in the development of a future notice of 
proposed rulemaking to revise the computation of prevailing wage levels 
in a manner that is consistent with the INA and more effectively 
ensures the employment of certain immigrant and nonimmigrant workers 
does not adversely affect the wages of U.S. workers similarly employed. 
Accordingly, the Department invites the public to answer one or more of 
the following questions in their submissions:

    1. What sources of data and methods are available that can be 
used alone, or in conjunction with other sources and methods, to 
approximate the wage level within an occupational wage distribution 
based on the OES wage survey and takes into account education, 
experience, and level of supervision for U.S. workers similarly 
employed across industries for specific occupation(s) and geographic 
area(s)?
    2. Besides the OES wage survey, what other sources of data and 
methods are available that can be used alone, or in conjunction with 
other sources and methods, to approximate wage levels, by occupation 
and geographic area, specifically for U.S. workers similarly 
employed at institutions of higher education, nonprofit entities 
related to or affiliated with such institutions, nonprofit research 
organizations and Governmental research organizations?
    3. Should the Department continue to set wage levels at the same 
point within the OES distribution for all occupations and geographic 
areas or, alternatively, set wage levels at different points within 
the OES distribution for different groups of occupations and/or 
geographic areas? If the latter, what sources of data and methods 
are available that can be used alone, or in conjunction with other 
sources and methods, to approximate different wage levels for 
different groups of occupations, taking into account education, 
experience, and level of supervision for U.S. workers similarly 
employed across industries and geographic areas?
    4. Other than computation of an arithmetic mean or specific 
percentile within an occupational wage distribution based on the OES 
wage survey, are there any other statistical approaches or 
estimation techniques the Department should consider when computing 
the wage level(s) for occupation(s) and geographic area(s)?

IV. Conclusion

    The Department invites interested parties to submit comments, 
information, data, and supporting materials based on the questions 
provided in this RFI. The Department has provided the list of questions 
above as a framework for the scope of this RFI and invites any 
submission that addresses those questions and provides useful 
information for the Department's consideration from all interested 
stakeholders, including members of the public, worker advocacy 
organizations and labor unions, employers, trade associations, public 
advocacy organizations, and others, including universities and research 
institutions, familiar with or interested in the prevailing wage 
determination methodology used in the PERM, H-1B, H-1B1, and E-3 
programs.

Suzan G. LeVine,
Principal Deputy Assistant Secretary for Employment and Training, 
Labor.
[FR Doc. 2021-06889 Filed 4-1-21; 8:45 am]
BILLING CODE 4510-FP-P