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Federal Register / Vol. 86, No. 24 / Monday, February 8, 2021 / Rules and Regulations
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III. Statutory and Regulatory Requirements A. Administrative Procedure Act This rule is being issued without prior notice and opportunity to comment and with an immediate effective date pursuant to 5 U.S.C. 553bB and d.
The Administrative Procedure Act APA, 5 U.S.C. 551 et seq., authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency, for good cause, finds that those procedures are impracticable, unnecessary, or contrary to the public interest. 5 Similarly, the APA requires agencies to provide at least a 30-day delayed effective date for substantive rules,6 except where the agency provides good cause to forgo this requirement. DHS has good cause to delay the H1B Selection Final Rules effective date without advance notice and comment because immediate implementation would be impracticable. Implementing the H1B
Selection Final Rule on March 9, 2021, would require USCIS to make and test major H1B registration system modifications, revise internal procedures, train staff, and offer training to the regulated public, before the March 2021 start of FY 2022 H1B cap filing season. While USCIS initially assessed that it would have sufficient time to undertake these changes and advised the regulated public accordingly in the H1B Selection Final Rule,7 upon further review, USCIS has determined that it will not have sufficient time to ensure an orderly and effective implementation of the changes to the H1B registration system in time for the FY 2022 H1B cap season, including time to make and thoroughly test system modifications, train staff, and conduct outreach. In addition and as discussed in detail above, DHS
determined that USCIS suspending the registration process and instead applying the H1B Selection Final Rule through a paper-based petition selection process is not a viable alternative because it would have deleterious effects on both the regulated public and the agency.
In addition, DHS recognizes that commenters responding to the H1B
Selection Notice of Proposed Rulemaking requested that DHS delay implementation of the H1B Selection Final Rule because of insufficient time for them to adapt to a new regulatory regime. Commenters indicated that immediate implementation would 55

U.S.C. 553bB.
U.S.C. 553d.
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impose an unreasonable burden on prospective petitioners and beneficiaries because changes so close to the beginning of that cap season would adversely impact U.S. employers and would create uncertainty and confusion.
Multiple commenters said companies already have made hiring decisions based on the existing registration system, so delaying implementation until the FY 2023 cap filing season set to begin in March 2022 would give the regulated community time to adjust.
Some commenters disagreed, stating that there was sufficient time for DHS, employers, and others to adjust to the changes.8
Upon further consideration of these comments, in addition to concerns that USCIS lacks adequate time to make and thoroughly test system modifications, revise internal procedures, train staff, and offer training to the regulated public, and concerns that reverting to a paper-based selection process also would have adverse effects on the regulated public and the agency, DHS
believes that providing the regulated public with only 60 days with a current effective date of March 9, 2021 to adapt to new regulatory requirements and modifications of the H1B registration system before the FY 2022 H1B cap registration season would cause confusion and very likely would significantly disrupt the orderly administration of the H1B cap. This is particularly so since, as described above, USCIS believes it can neither stand-up, thoroughly test, and therefore deploy the H1B registration system changes and thus would not be able to conduct outreach on such changes to the regulated public in advance of implementation based on the current March 9, 2021 effective date, nor can it successfully revert to a paper-based petition selection process on this timeline. In addition, DHS believes that the possibility of having two different regulatory schemes apply to the same fiscal year would create significant confusion for the regulated public that would not have been reasonably foreseeable; the same is true for reverting to a paper-based petition selection process. Similarly, reverting to a paper-based petition process in order to implement the H1B Selection Final Rule, with so little lead time to develop a process for sorting and selecting from among potentially two hundred thousand petitions, hiring temporary contract staff during the national health emergency to handle intake of the petitions, and train staff on how to conduct a new wage-based selection
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process in this context, as well as no lead time to offer outreach to the regulated public, would similarly disrupt the expectations of the regulated public, and adversely affect the ability of at least some petitioners to participate in the selection process for FY 2022.
Therefore, DHS is delaying the effective date of the H1B Selection Final Rule to December 31, 2021.
Current regulations at 8 CFR
214.2h8iiiA3 require that the registration period start at least 14
calendar days before the earliest date on which H1B cap-subject petitions may be filed for a particular fiscal year i.e., April 1, 2021, or shortly thereafter for FY 2022. Therefore, USCIS must open the registration period some time in earlyto mid-March. Delaying the effective date of the H1B Selection Final Rule beyond March 9, 2021, necessarily requires that USCIS apply the random selection regulations currently in place to the FY 2022 initial registration period. As discussed above, DHS aims to ensure an orderly and effective administration of the FY 2022
H1B numerical allocations. Because of this delay rule, the initial FY 2022
registration period will be administered under the current regulations. DHS
believes that it is best for the public that the same legal standard is also applied to all of the FY 2022 H1B numerical allocations. If the H1B Selection Final Rule were to take effect during the initial registration period, or any subsequent registration period during FY 2022, USCIS believes it would not be operationally able to administer the H1B numerical allocations under two different regulatory standards.
Therefore, DHS is delaying the effective date of the H1B Selection Final Rule to December 31, 2021, to better ensure that the H1B Selection Final Rule will not take effect while USCIS is still administering the FY 2022
numerical allocation selection process.
This delay and the application of the current regulations to the initial registration period for the FY 2022
numerical allocations will provide DHS
with more time to modify and test the changes to the H1B registration system that will be needed to implement wagelevel-based selection, and to provide the regulated public with time to adapt to new procedures arising from the new legal requirements and system modifications.
DHS is aware that some prospective petitioners and beneficiaries already may have changed their behavior in reliance on the H1B Selection Final Rule. However, given the short amount of time that has passed since this rule was published on January 8, 2021, DHS

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