Rule2021-26660
Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States, Implementation of Vacatur
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 13, 2021
Effective
December 13, 2021
Issuing agencies
Labor DepartmentEmployment and Training Administration
Abstract
This Final Rule effectuates a Federal district court order vacating a January 14, 2021 Final Rule.
Full Text
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<title>Federal Register, Volume 86 Issue 236 (Monday, December 13, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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2021, at 86 FR 26164, is withdrawn.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2021, at 86 FR 26164, is also withdrawn.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
<a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a>.
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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
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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]
BILLING CODE 4510-FP-P
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</html>Indexed from Federal Register on December 13, 2021.
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