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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
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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. DOL has taken necessary steps to comply with the courts orders and is no longer implementing the DOL IFR. DHS also took necessary steps to comply with the order in Chamber of Commerce, et al. v.
DHS, et al., and is not implementing the DHS IFR. DHS, therefore, disagrees with the commenters assertions that DHS
must consider the DOL and DHS IFRs in the context of this final rule as both IFRs were set aside and are no longer being implemented.
b. Other Rulemaking Process Comments Comments: A joint submission from multiple organizations opposed the proposed rule and said that they were willing to participate in an informal dialogue with DHS or formally participate in an Advance Notice of Proposed Rulemaking process to help DHS determine whether a rule is needed, what regulation to develop, and viable alternative suggestions. A trade association also opposed the rule and advised USCIS to pursue a formal rulemaking effort that provides stakeholders with more input before the formal rulemaking process begins.
Response: DHS believes that the public has had sufficient opportunity to review and comment on this rule, as demonstrated by the number of highquality 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 public has had sufficient opportunity to participate in the rulemaking process.
Comment: A professional association commented that the public had no advance notice that the proposed rule was forthcoming because it was never listed on the Unified Agenda. The association also said USCIS had previously concluded that the policy now being proposed was not a permissible agency action, and therefore stakeholders were not prepared to conduct the sophisticated analysis necessary to assess the policy now being proposed in this rule.
Response: DHS believes that the public has had sufficient opportunity to review and comment on this rule, as demonstrated by the number of highquality comments received from the public, including individuals, attorneys, employers, and organizations. Further, DHS explained in the NPRM that this
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rule is consistent with and permissible under DHSs general statutory authority provided in INA sections 103a, 214a and c, 8 U.S.C. 1103a, 1184a and c, and HSA section 102, 6 U.S.C. 112, and DHS believes that the comment period provided sufficient time to assess the rule.
Comment: A research organization wrote that the administration waited until the 2020 election to take substantive action on the H1B
program, and while DOL and USCIS
have legal authority to make the regulatory changes, the timing and regulatory process have made them susceptible to legal challenges. An individual commenter said that the administration will change in a few weeks and suggested that the proposed rule is being rushed into implementation before that happens. An individual commenter said USCIS
should wait to promulgate the rule until the new presidential administration takes over and the Senate confirms a new head of both USCIS and DHS.
Response: DHS agrees that it has the legal authority to amend its regulations governing the selection of registrations submitted by prospective petitioners seeking to file H1B cap-subject petitions or the selection of petitions, if the registration process is suspended.
DHS believes that the public has had sufficient opportunity to review and comment on this rule, as demonstrated by the number of high-quality comments received from the public, including individuals, attorneys, employers, and organizations. DHS
believes that the public has had sufficient opportunity to participate in the rulemaking process.
3. Effective Date and Implementation Comments: A few individual commenters supported the proposed rules immediate implementation to protect U.S. jobs. Another individual commenter contradicted claims that it is too late in the year for employers to accommodate changes in the registration system, saying that many companies wait until the new year to reach out to employees anyway, and recent changes to the H1B process have made it easier to petition.
Response: DHS agrees that this rule is being published with sufficient time to implement it for the FY 2022
registration period.
Comments: Many commenters, including a form letter campaign, said that, if USCIS were to finalize the proposed rule, it should not implement the proposed rule for the FY 2022 H1B
cap filing season set to begin in March 2021 because changes so close to the
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beginning of that season would adversely impact U.S. employers, immigration lawyers, and individuals.
Multiple commenters said companies have already 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. A
company commented that implementing the rule for the upcoming H1B cap filing season would create uncertainty and confusion. A few commenters added that stakeholders have had to adapt to the new online registration system, which has ongoing issues, so it is unlikely that further modifications to the registration system will be implemented to run smoothly for the upcoming H1B season. An individual commenter opposed implementing the proposed rule at this time because the U.S. economy needs time and stability to recover.
Response: DHS believes that this rule is being published with sufficient time to allow employers to plan appropriately prior to the start of the registration period for FY 2022. DHS
does not believe that petitioners will face significant adverse impacts with the implementation of this change in the selection process and believes that employers have sufficient time to make any decisions they believe are needed as a result of this rule, such as increasing proffered wages to increase the odds of selection. Further, DHS believes that there is sufficient time to allow for testing and modification and that delaying implementation at this time is not necessary.
E. Statutory and Regulatory Requirements 1. Impacts and Benefits E.O. 12866, 13563, and 13771
a. Methodology and Adequacy of the Cost-Benefit Analysis Comments: Multiple commenters provided input on the wage data DHS
used to analyze the impact of the proposed rule. A couple of commenters referenced that the economic analysis conducted in the proposed rule was based on previous OES wage levels, rather than the new ones implemented as a result of the DOL IFR. One of these commenters stated that, with the huge changes in the wage levels resulting from the DOL IFR, the H1B data would be much more skewed, and the economic impact analysis in the proposed rule was completely invalid.
Another commenter explained that all of the analysis done in the proposed rule was based on previous OES wage
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