[Federal Register Volume 86, Number 236 (Monday, December 13, 2021)]
[Rules and Regulations]
[Pages 70729-70731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26660]


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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, Implementation of Vacatur

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Final rule.

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SUMMARY: This Final Rule effectuates a Federal district court order 
vacating a January 14, 2021 Final Rule.

DATES: This rule is effective December 13, 2021. As of December 13, 
2021, the Final Rule published on January 14, 2021, at 86 FR 3608, 
delayed on March 12, 2021, at 86 FR 13995, and further delayed May 13, 
2021, at 86 FR 26164, is withdrawn. The Final Rule published on May 13, 
2021, at 86 FR 26164, is also withdrawn.

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 Removal of Regulations

    On October 8, 2020, the Department of Labor (Department) published 
an Interim Final Rule \1\ (IFR or October 2020 IFR), amending 
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. The Department published the October 2020 IFR with 
an

[[Page 70730]]

immediate effective date, bypassing pre-promulgation notice and 
comment, but requesting public input during a post-promulgation 30-day 
public comment period. Four groups of plaintiffs separately challenged 
the Department's IFR and, on December 1, 3, and 14, 2020, respectively, 
the IFR was set aside or enjoined by three district courts on 
procedural grounds.\2\ Subsequently, on January 14, 2021, the 
Department published a Final Rule \3\ in the Federal Register (Final 
Rule or January 2021 Final Rule), which adopted changes to the IFR. 
Although the Final Rule contained an effective date of March 15, 2021, 
the Department also included two sets of transition periods under which 
adjustments to the new wage levels would not begin until July 1, 2021. 
The Department twice delayed the effective date of the Final Rule,\4\ 
and, on June 23, 2021, before the Final Rule took effect, the U.S. 
District Court for the Northern District of California entered an order 
vacating and remanding the Final Rule.\5\ In light of the court's 
order, the Department has already announced that the operative version 
of the Code of Federal Regulations (CFR) at 20 CFR 656.40 and 20 CFR 
655.731 continues to be the text in place on October 7, 2020, prior to 
the publication of the IFR.\6\ However, changes to the regulatory text 
resulting from the now-vacated rulemaking are still reflected in the 
CFR at 20 CFR parts 655 and 656.
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    \1\ Strengthening Wage Protections for the Temporary and 
Permanent Employment of Certain Aliens in the United States, 85 FR 
63872 (Oct. 8, 2020).
    \2\ Strengthening Wage Protections for the Temporary and 
Permanent Employment of Certain Aliens in the United States, 86 FR 
3608, 3612 (Jan. 14, 2021) (discussing cases).
    \3\ 86 FR 3608.
    \4\ 86 FR 13995 (Mar. 12, 2021); 86 FR 26164 (May 13, 2021).
    \5\ See Order Granting Defendants' Motion for Voluntary Remand 
with Vacatur, Chamber of Commerce, et al. v. Dep't of Homeland Sec., 
et al., No. 20-cv-07331 (N.D. Cal. June 23, 2021), ECF No. 139.
    \6\ Announcements, OFLC Announces Updates to Implementation of 
the Final Rule Affecting Wages for H-1B and PERM Workers; District 
Court's Order Vacating Final Rule (June 29, 2021), available at 
https://www.dol.gov/agencies/eta/foreign-labor/news.
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    This rule removes from the CFR the regulatory text that the 
Department promulgated through the rulemaking in October 2020, and 
restores the regulatory text to appear as it did before the IFR's 
effective date.
    The Department is not required to provide notice and comment or 
delay the effective date of this rule, because the changes made simply 
implement the courts' orders, including the vacatur of the January 2021 
Final Rule, and restore the regulatory text so that it correctly 
reflects the operative regulatory text in place prior to publication of 
the now-vacated rulemaking. Moreover, good cause exists here for 
bypassing any otherwise applicable requirements of notice and comment 
and a delayed effective date. Notice and comment and a delayed 
effective date are unnecessary for the implementation of the court's 
order vacating the rule and would be contrary to public interest in 
light of the agency's need to implement the final judgment. See 5 
U.S.C. 533(b)(B), (d). The Department believes that delaying the 
ministerial act of restoring the regulatory text in the Federal 
Register is contrary to the public interest because it could lead to 
confusion, particularly among the regulated public, as to the 
applicable prevailing wage methodology. The Department has concluded 
that each of those three reasons--that notice and comment and a delayed 
effective date are unnecessary, impracticable, and contrary to the 
public interest--independently provides good cause to bypass any 
otherwise applicable requirements of notice and comment and a delayed 
effective date.

List of Subjects

20 CFR Part 655

    Administrative practice and procedure, Australia, Chile, 
Employment, Employment and training, Immigration, Labor, Migrant labor, 
Wages.

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 parts 655 and 656 of chapter V, title 20, Code of 
Federal Regulations, as follows:

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED 
STATES

0
1. The authority citation for part 655 is revised to read as follows:

    Authority:  Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and 
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 
132 Stat. 1547 (48 U.S.C. 1806).
    Subpart A issued under 8 CFR 214.2(h).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), 
and 1188; and 8 CFR 214.2(h).
    Subpart E issued under 48 U.S.C. 1806.
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, 
Pub. L. 114-74 at section 701.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. 
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), 
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 
note, Pub. L. 114-74 at section 701.
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).


0
2. Amend Sec.  655.731 by revising paragraphs (a)(2)(ii) introductory 
text, (a)(2)(ii)(A) introductory text, and (a)(2)(ii)(A)(2) to read as 
follows:


Sec.  655.731   What is the first LCA requirement, regarding wages?

* * * * *
    (a) * * *
    (2) * * *
    (ii) If the job opportunity is in an occupation which is not 
covered by paragraph (a)(2)(i) of this section, the prevailing wage 
shall be the arithmetic mean of the wages of workers similarly 
employed, except that the prevailing wage shall be the median when 
provided by paragraphs (a)(2)(ii)(A), (b)(3)(iii)(B)(2), and 
(b)(3)(iii)(C)(2) of this section. The prevailing wage rate shall be 
based on the best information available. The following prevailing wage 
sources may be used:
    (A) OFLC National Processing Center (NPC) determination. Prior to 
January 1, 2010, the SWA having jurisdiction over the area of intended 
employment shall continue to receive and process prevailing wage 
determination requests, but shall do so in accordance with these 
regulatory provisions and Department guidance. On or after January 1, 
2010, the NPC shall receive and process prevailing wage determination 
requests in accordance with these regulations and with Department 
guidance. Upon receipt of a written request for a PWD on or after 
January 1, 2010, the NPC will determine whether the occupation is 
covered by a collective bargaining agreement which was negotiated at 
arm's length, and, if not, determine the arithmetic mean of wages of 
workers similarly employed in the area of intended employment. The wage 
component of the Bureau of Labor Statistics Occupational Employment 
Statistics survey shall be used to

[[Page 70731]]

determine the arithmetic mean, unless the employer provides an 
acceptable survey. The NPC shall determine the wage in accordance with 
secs. 212(n) and 212(t) of the INA. If an acceptable employer-provided 
wage survey provides a median and does not provide an arithmetic mean, 
the median shall be the prevailing wage applicable to the employer's 
job opportunity. In making a PWD, the Chicago NPC will follow 20 CFR 
656.40 and other administrative guidelines or regulations issued by 
ETA. The Chicago NPC shall specify the validity period of the PWD, 
which in no event shall be for less than 90 days or more than 1 year 
from the date of the determination.
* * * * *
    (2) If the employer is unable to wait for the NPC to produce the 
requested prevailing wage for the occupation in question, or for the CO 
and/or the BALCA to issue a decision, the employer may rely on other 
legitimate sources of available wage information as set forth in 
paragraphs (a)(2)(ii)(B) and (C) of this section. If the employer later 
discovers, upon receipt of the PWD from the NPC, that the information 
relied upon produced a wage below the final PWD and the employer was 
paying the NPC-determined wage, no wage violation will be found if the 
employer retroactively compensates the H-2B nonimmigrant(s) for the 
difference between the wage paid and the prevailing wage, within 30 
days of the employer's receipt of the PWD.
* * * * *

PART 656--LABOR CERTIFICATION PROCESS FOR PERMANENT EMPLOYMENT OF 
ALIENS IN THE UNITED STATES

0
3. The authority citation for part 656 is revised to read as follows:

    Authority:  8 U.S.C. 1182(a)(5)(A), 1182(p)(1); sec.122, Public 
Law 101-649, 109 Stat. 4978; and Title IV, Public Law 105-277, 112 
Stat. 2681.


0
4. 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. Prior to January 1, 
2010, the SWA having jurisdiction over the area of intended employment 
shall continue to receive and process prevailing wage determination 
requests in accordance with the regulatory provisions and Department 
guidance in effect prior to January 1, 2009. On or after January 1, 
2010, the NPC shall receive and process prevailing wage determination 
requests in accordance with these regulations 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(t) of the INA. Unless the employer chooses to appeal the 
center's PWD under Sec.  656.41(a) of this part, 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 the arithmetic mean, 
except as provided in paragraph (b)(3) of this section, of the wages of 
workers similarly employed in the area of intended employment. The wage 
component of the DOL Occupational Employment Statistics Survey shall be 
used to determine the arithmetic mean, unless the employer provides an 
acceptable survey under paragraph (g) of this section.
    (3) If the employer provides a survey acceptable under paragraph 
(g) of this section that 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.
* * * * *

Angela Hanks,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2021-26660 Filed 12-10-21; 8:45 am]
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