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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
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aside on December 1, 2020, and is no longer being implemented, DHS will not be considering the impact of the DOL
IFR in the context of this final rule.106
Comments: A professional association remarked that petitioners who use private survey data would be disadvantaged by the proposed rule and said that, even when private wage surveys provide an accurate prevailing wage, the proposed rule requires the employer to downgrade the H1B
registration to the lower OES prevailing wage level. The commenter concluded that, as a result, the proposed rules artificial preference in the registration system to what is admittedly incomplete or possibly inaccurate OES wage data reduces the chance that employers intending to pay the H1B required wage based on the statutory best information availablein this case a private industry surveywill see their registration selection chances materially reduced. A law firm questioned which factors contributed to DHSs decision to use the OES wage levels as opposed to wage leveling from a permissible private wage survey.
Response: DHS appreciates the commenters question. When determining how to rank and select registrations or petitions by wage level, DHS decided to use OES prevailing wage levels because they are the most comprehensive and objective source for comparing wages. The OES program produces employment and wage estimates annually for nearly 800
occupations.107 Additionally, most petitioners are familiar with the OES
wage levels since they are used by DOL
and have been used in the foreign labor certification process since 1998.108 OES
wage level data is publicly available through the Foreign Labor Certification Data Centers Online Wage Library.
Private wage surveys are not publicly available and do not always have four wage levels.
106 On December 1, 2020, the U.S. District Court for the Northern District of California issued an order in Chamber of Commerce, et al. v. DHS, et al., No. 20cv7331, setting aside the DOL IFR, 85
FR 63872. Similarly, on December 3, 2020, the U.S.
District Court for the District of New Jersey issued a preliminary injunction in ITServe Alliance, Inc., et al. v. Scalia, et al., No. 20cv14604, applying to the plaintiffs in that case. Also, on December 3, 2020, DOL announced that it would no longer implement the IFR, consistent with the above referenced court orders.
107 See U.S. Department of Labor, Bureau of Labor Statistics, Occupational Employment Statistics, https www.bls.gov/oes/home.htm last visited Dec.
14, 2020.
108 See U.S. Department of Labor, Employment and Training Administration, Prevailing Wages PERM, H2B, H1B, H1B1, and E3, https
www.dol.gov/agencies/eta/foreign-labor/wages/
prevailing-wage last visited Dec. 14, 2020.

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DHS disagrees with the commenters assertion that petitioners who use private survey data would be disadvantaged by the rule. Petitioners may continue to use private wage surveys, if they choose to do so, to establish that they will be paying the beneficiary a required wage. This rule, however, will rank and select registrations or petitions, as applicable, based on the highest OES wage level that the proffered wage equals or exceeds as OES wage data is the most comprehensive and objective source for comparing wages.
Comment: An individual commenter stated that the requirement to designate the wage level is confusing because DHS
is asking petitioners to designate not the wage level associated with the job opportunity, but the highest OES wage level for which the proffered wage exceeds the OES wage. The commenter said asking petitioners to determine two different wage levels makes the process deliberately complex and ripe for error, which could be fatal given the proposed increased authority of USCIS to deny petitions for discrepancies in wage levels. The commenter also expressed concern that the position, its substantive job duties, its occupational classification, the intended worksite, the prevailing wage, and the actual wage are now required at the registration stage in order to comply with the complicated ranking-wage-level calculation.
Response: DHS does not agree with the comment stating that asking petitioners to specify the highest corresponding OES wage level that the proffered wage would equal or exceed on the registration is confusing or burdensome. Further, DHS disagrees with the comment stating that the position, its substantive job duties, its occupational classification, the intended worksite, the prevailing wage, and the actual wage are now required at the registration stage. In addition to the information required on the current electronic registration form and on the H1B petition and for purposes of this selection process and to establish the ranking order, a registrant or a petitioner if registration is suspended would be required to provide only the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment. While the OES
wage level assessment would be based on the SOC code, area of intended employment, and proffered wage, the registrant would not need to supply the SOC code, area of intended employment, and proffered wage at the registration stage.

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Comment: A professional association asserted that the U.S. Bureau of Labor Statistics BLS OES wage survey skews wage data higher for several professions, including physician specialties. The commenter suggested that wage survey data collected from employees has significant issues, including that the data is collected voluntarily, wage data is grouped rather than provided for individual employees, larger urban centers are overrepresented compared to smaller practices, and physicians in rural areas are underreported. The association added that, in situations where there is less wage data, DHS will be unable to accurately adjudicate cap slots, citing data from the American Immigration Council and the Foreign Labor Certification Data Center. The association also said the DOL IFR
increases the prevailing wage requirements and exacerbates the issue by establishing a default wage for physicians of $208,000 where data is unavailable. The professional association stated that the BLS
prevailing wage does not comply with DHSs claim that higher skill level positions must be paid higher wages.
The association asserted that statistical analysis problems with the BLS OES
survey would cause the population of H1B physicians to be paid equally regardless of skill or experience. The commenter further stated that rural and other underserved areas will not meet the wage requirements and will lose access to critically needed physicians.
Response: On December 1, 2020, the U.S. District Court for the Northern District of California issued an order in Chamber of Commerce, et al. v. DHS, et al., No. 20cv7331, setting aside the DOL IFR, which took effect on October 8, 2020, and implemented reforms to the prevailing wage methodology for the Permanent Employment Certification, H1B, H1B1, and E3 visa programs.
Similarly, on December 3, 2020, the U.S.
District Court for the District of New Jersey issued a preliminary injunction in ITServe Alliance, Inc., et al. v. Scalia, et al., No. 20cv14604, applying to the plaintiffs in that case. On December 3, 2020, DOL announced that it was taking necessary steps to comply with the courts orders and will no longer implement the IFR. These steps include making required technical changes to the Foreign Labor Application Gateway FLAG system to replace the October 8, 2020, through June 30, 2021, wage source year data that was implemented under the DOL IFR with the OES
prevailing wage data that was in effect on October 7, 2020, and reflecting such data updates in the Foreign Labor
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