Quiero saber acerca de...

tkelley on DSKBCP9HB2PROD with RULES3

Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations temporary rule that is limited in duration to the COVID19 pandemic, and regularly adjusting selection criteria based on the needs of the job market would be administratively burdensome.
Therefore, DHS declines to adopt the commenters suggestion.
Comments: A few commenters proposed that DHS prioritize selection based on multiple factors, including the prospective beneficiarys degree from a U.S. institution, the length of time legally studying or working in the United States, skills, wages, and other qualifications. Other commenters stated that the DHS should weigh other desirable factors, such as whether H1B
employees are U.S. university graduates and whether the petitioner is a small business contributing a significant amount of their income to wages. This would allow small businesses to compete for H1B visas and prevent larger corporations from being the only employers to benefit from the H1B
program. Another comment urged DHS
to create a prioritization system that incentivizes employers to petition for permanence for H1B workers, among other desirable employer behavior in addition to fair compensation.
Response: DHS believes that identifying and weighing multiple factors is not feasible, as such an approach could be overly complicated, unpredictable, and subjective.
Therefore, DHS declines to adopt the commenters suggestions.
Comment: A professional association requested that DHS exempt physicians from this rule. An individual suggested providing exceptions or waivers for certain industries, such as the healthcare/pharmaceutical fields, due to the different experience requirements in those fields.
Response: DHS declines to exempt physicians or other specific occupations or fields from the rule. While DHS
certainly appreciates the significant challenges faced by healthcare professionals, especially during the current COVID19 pandemic, DHS
recognizes that there are many other occupations that can be considered critical now and at various times in the future. Carving out exceptions for some occupations would be highly problematic, particularly as this rule is not a temporary rule that is limited in duration to the COVID19 pandemic.
Comment: An individual commented on the alternative proposal of weighting registrations such that a level IV
position would have four times greater chance of selection than a level I
position, a level III position would have three times greater chance of selection than a level I position, and so on. The
VerDate Sep<11>2014

23:18 Jan 07, 2021

Jkt 253001

commenter questioned why DHS set the multiples at 4 times, 3 times, and 2
times.
Response: The multiples of 4 times, 3
times, and 2 times, correspond to wage levels IV, III, and II, respectively. As this commenter did not provide additional rationale in support of or against this alternative, DHS will not further consider this alternative.
D. Other Issues Relating to Rule 1. Requests To Extend the Comment Period Comments: A few commenters and a professional association stated that the public has not been given sufficient time to comment on the proposed rule.
One commenter said that there is no substantiated reason to limit the comment period and that doing so degrades the rulemaking process. An individual commenter stated that implementing these changes for the FY
2022 H1B cap filing season would cause even more uncertainty for international students who already have faced enough uncertainty over the past year due to COVID19, the Student and Exchange Visitor Program proposed rule,140 and USCIS processing times.
An individual commenter and a university requested that the comment period be extended to 60 days because of the proposed rules magnitude and the impacts of COVID19 on employers resources. A professional association requested the same extension to allow for meaningful public comment, citing the language of E.O. 12866 and E.O.
13563, explaining that those executive orders recommend a comment period of no less than 60 days. The association listed six issues for which the proposed rule requests feedback and asserted that a 30-day comment period does not allow adequate time to address these issues. The association also said that, since this rule was published during the Thanksgiving season, the comment period was effectively shortened even further, undercutting the purpose of the notice and comment process. An individual commenter questioned why DHS was rushing the proposed rule during the holiday season as opposed to providing more time for public comment.
Response: While DHS acknowledges that E.O. 12866 and 13563 indicate that agencies generally should provide 60
days for public comment, DHS believes 140 DHS, U.S. Immigration and Customs Enforcement, Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media, 85 FR 60526 Sept. 25, 2020.

PO 00000

Frm 00035

Fmt 4701

Sfmt 4700

1709

that the 30-day comment period was sufficient and declines to extend the comment period. This rule is narrow in scope, and 30 days was sufficient time for the public to determine the impacts of the proposed rule, if any, and to prepare and submit comments. The sufficiency of the 30-day comment period is demonstrated by the number of high-quality comments received from the public, including individuals, attorneys, employers, and organizations.
Given the narrow scope of the rule, the quantity and quality of comments received in response to the proposed rule, and other publicly available information regarding the rule, DHS
believes that the 30-day comment period has been sufficient.
2. Rulemaking Process a. Multiple H1B Rulemakings Comments: An anonymous commenter stated that the proposed rule does not discuss the DOL IFR,141 or explain whether DHS and DOL
consulted with each other in drafting the rules. The commenter added that Congress has given DOL the primary authority in protecting U.S. labor, and the proposed rule does not address how it would interact with the DOL rule, or why the proposed rule was necessary given the DOL IFR.
An advocacy group stated that the proposed rule should not be implemented while the DOL IFR and the DHS IFR, Strengthening the H1B
Nonimmigrant Visa Classification Program H1B Strengthening IFR,142
were pending and being challenged in court. The commenter said it would be impossible to comment on the proposed rule without considering the impacts of the other two rules that will affect the H1B process as well. Similarly, a research organization wrote that recently proposed rules by Federal agencies with respect to wages for foreign workers in work visa programs have been inconsistent and confusing.
An anonymous commenter stated that their workplace has been overworked for months responding to the multiple regulatory changes to the H1B
program.
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 and the DHS IFR. Similarly, on December 3, 2020, the U.S. District 141 85

FR 63872.
Department of Homeland Security, U.S.
Citizenship and Immigration Services, Strengthening the H1B Nonimmigrant Visa Classification Program, 85 FR 63918 Oct. 8, 2020.
142 U.S.

E:FRFM08JAR3.SGM

08JAR3