[Federal Register Volume 86, Number 243 (Wednesday, December 22, 2021)]
[Rules and Regulations]
[Pages 72516-72517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27714]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

RIN 1615-AC61


Modification of Registration Requirement for Petitioners Seeking 
To File Cap-Subject H-1B Petitions, Implementation of Vacatur

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: Final rule; withdrawal.

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SUMMARY: This final rule withdraws the ``Modification of Registration 
Requirement for Petitioners Seeking to File Cap-Subject H-1B 
Petitions,'' final rule issued on January 8, 2021, because that rule 
has been vacated by a Federal district court.

DATES: The Department of Homeland Security is withdrawing the final 
rule published January 8, 2021 (86 FR 1676), which was delayed by the 
final rule published February 8, 2021 (86 FR 8543), as of December 22, 
2021.

FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and 
Foreign Workers Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
5900 Capital Gateway Drive, Mail Stop 2090, Camp Springs, MD 20588-
0009. Telephone Number (240) 721-3000 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Background and Basis for Removal of Regulations

    On January 8, 2021, after going through notice and comment 
rulemaking, the Department of Homeland Security (DHS) issued a final 
rule titled ``Modification of Registration Requirement for Petitioners 
Seeking To File Cap-Subject H-1B Petitions'' (``H-1B Selection Final 
Rule'').\1\ The rule was scheduled to go into effect on March 9, 2021. 
On February 8, 2021, DHS issued a final rule delaying the effective 
date of the H-1B Selection Final Rule to December 31, 2021.\2\ On March 
19, 2021, Plaintiffs in ongoing litigation moved to file an amended 
complaint in the U.S. District Court for the Northern District of 
California adding the H-1B Selection Final Rule to the list of 
challenged agency actions,\3\ which the court granted leave to file on 
April 15, 2021.\4\ Following several months of litigation, on September 
15, 2021, the court vacated the H-1B Selection Final Rule and remanded 
the matter to DHS.\5\
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    \1\ Modification of Registration Requirement for Petitioners 
Seeking To File Cap-Subject H-1B Petitions, 86 FR 1676 (Jan. 8, 
2021).
    \2\ Modification of Registration Requirement for Petitioners 
Seeking To File Cap-Subject H-1B Petitions; Delay of Effective Date, 
86 FR 8543 (Feb. 8, 2021).
    \3\ See Chamber of Commerce of the United States of America et 
al. v. United States Department of Homeland Security, et al., No. 
4:20-cv-07331 (N.D. Cal. March 19, 2021) (Amended Complaint).
    \4\ See Chamber of Commerce of the United States of America et 
al. v. United States Department of Homeland Security, et al., No. 
4:20-cv-07331 (N.D. Cal. Apr. 15, 2021) (Order Permitting 
Supplementation of Complaint and Extending Deadline to Submit Joint 
Case Management Conference Statement).
    \5\ See Chamber of Commerce of the United States of America et 
al. v. United States Department of Homeland Security, et al., No. 
4:20-cv-07331 (N.D. Cal. Sep. 15, 2021) (Order Granting Pl.'s Motion 
for Summary Judgment and Denying Def.'s Cross-Motion for Summary 
Judgment; Judgment). On November 12, 2021 a notice of appeal was 
filed in the case. On November 30, 2021, the government filed a 
motion to voluntarily dismiss the appeal, and the appeal was 
dismissed on December 2, 2021. The district court's judgment is 
final.
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    DHS intends to comply with the court's decision vacating the H-1B 
Selection Final Rule. Therefore, since regulatory changes promulgated 
through the H-1B Selection Final Rule are scheduled to be codified in 
the Code of Federal Regulations (CFR) at 8 CFR 214.2 on the rule's new 
effective date, December 31, 2021, DHS is issuing this rule to withdraw 
the vacated H-1B Selection Final Rule.
    DHS is not required to provide notice and comment or delay the 
effective date of this rule because this rule simply implements the 
court's vacatur of the H-1B Selection Final Rule and ensures that the 
vacated regulatory provisions are not codified in CFR. Following the 
vacatur, the changes made by the H-1B Selection Final Rule do not have 
any legal effect.
    Moreover, good cause exists here for forgoing notice and comment 
and a delayed effective date even if those procedures were otherwise 
required. Notice and comment and a delayed effective date are 
unnecessary for the implementation of the court's order vacating the 
rule and would be impracticable in light of the agency's immediate need 
to implement the final judgment. See 5 U.S.C. 553(b)(B), (d). 
Furthermore, DHS believes that delaying this ministerial act would be 
contrary to public interest because it could lead to vacated regulatory 
provisions being codified and significant confusion among the regulated 
public regarding the administration of the fiscal year (FY) 2023 H-1B 
numerical allocations, generally known as the ``H-1B cap,'' which is 
likely to begin in early March 2022.\6\
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    \6\ See 8 CFR 214.2(h)(8)(iii)(A)(3) (explaining that the annual 
initial registration period will start at least 14 calendar days 
before the earliest date on which H-1B cap-subject petitions may be 
filed, consistent with 8 CFR 214.2(h)(2)(i)(I). For the FY 2023 H-1B 
numerical allocations, the earliest date that H-1B cap-subject 
petitions may be filed is April 1, 2022, such that registration is 
likely to commence in early March 2022).
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    DHS 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.

II. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521, DHS 
is required to submit to the Office of Management and Budget (OMB), for 
review and approval, collections of information and changes to 
collections of information. The following information collections are 
impacted by the vacatur. DHS is withdrawing the

[[Page 72517]]

changes to these information collection instruments associated with the 
H-1B Selection Final Rule.

U.S. Citizenship and Immigration Services (USCIS) Form I-129

    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Petition for a Nonimmigrant 
Worker.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: I-129; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Business or other for profit. USCIS 
uses the data collected on this form to determine eligibility for the 
requested nonimmigrant petition and/or requests to extend or change 
nonimmigrant status. An employer (or agent, where applicable) uses this 
form to petition USCIS for a noncitizen to temporarily enter as a 
nonimmigrant. An employer (or agent, where applicable) also uses this 
form to request an extension of stay or change of status on behalf of 
the noncitizen worker. The form serves the purpose of standardizing 
requests for nonimmigrant workers and ensuring that basic information 
required for assessing eligibility is provided by the petitioner while 
requesting that beneficiaries be classified under certain nonimmigrant 
employment categories. It also assists USCIS in compiling information 
required by Congress annually to assess effectiveness and utilization 
of certain nonimmigrant classifications. USCIS also uses the data to 
determine continued eligibility. For example, the data collected is 
used in compliance reviews and other inspections to ensure that all 
program requirements are being met.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: I-129 is 
294,751 and the estimated hour burden per response is 2.34 hours; the 
estimated total number of respondents for the information collection E-
1/E-2 Classification Supplement to Form I-129 is 4,760 and the 
estimated hour burden per response is 0.67 hours; the estimated total 
number of respondents for the information collection Trade Agreement 
Supplement to Form I-129 is 3,057 and the estimated hour burden per 
response is 0.67 hours; the estimated total number of respondents for 
the information collection H Classification Supplement to Form I-129 is 
96,291 and the estimated hour burden per response is 2 hours; the 
estimated total number of respondents for the information collection H-
1B and H-1B1 Data Collection and Filing Fee Exemption Supplement is 
96,291 and the estimated hour burden per response is 1 hour; the 
estimated total number of respondents for the information collection L 
Classification Supplement to Form I-129 is 37,831 and the estimated 
hour burden per response is 1.34 hours; the estimated total number of 
respondents for the information collection O and P Classifications 
Supplement to Form I-129 is 22,710 and the estimated hour burden per 
response is 1 hour; the estimated total number of respondents for the 
information collection Q-1 Classification Supplement to Form I-129 is 
155 and the estimated hour burden per response is 0.34 hours; the 
estimated total number of respondents for the information collection R-
1 Classification Supplement to Form I-129 is 6,635 and the estimated 
hour burden per response is 2.34 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection of information is 1,072,810 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $70,681,290.

USCIS H-1B Registration Tool

    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: H-1B Registration Tool.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: OMB-64; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Business or other for profit. USCIS 
will use the data collected through the H-1B Registration Tool to 
select a sufficient number of registrations projected as needed to meet 
the applicable H-1B cap allocations and to notify registrants whether 
their registrations were selected.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of business or other for-profit respondents for the 
information collection H-1B Registration Tool is 35,500 with an 
estimated 3 responses per respondents and an estimated hour burden per 
response of 0.5 hours. The estimated total number of attorney 
respondents for the information collection H-1B Registration Tool is 
4,500 with an estimated 38 responses per respondents and an estimated 
hour burden per response of 0.5 hours.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection of information is 138,750 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $0.

List of Subjects in 8 CFR Part 214

    Administrative practice and procedure, Aliens, Cultural exchange 
program, Employment, Foreign officials, Health professions, Reporting 
and recordkeeping requirements, Students.

PART 214--NONIMMIGRANT CLASSES

0
Accordingly, the amendments to 8 CFR part 214, published in the Federal 
Register on January 8, 2021 (86 FR 1676), which were to take effect on 
December 31, 2021 (86 FR 8543, February 8, 2021), are withdrawn as of 
December 22, 2021.

Alejandro N. Mayorkas,
Secretary of Homeland Security.
[FR Doc. 2021-27714 Filed 12-21-21; 8:45 am]
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