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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
independent authoritative source, including a private wage survey.
Therefore, such a change effectively could preclude petitioners that utilize one of those other sources from being selected for registration. By grouping OES wage level I and below OES wage level I together, those petitioners have a fairer chance of selection. DHS was unable to estimate how many registrations, initially classified as N/A, would end up in each wage level classification as a result of this rule. Due to data limitations and missing data, DHS may have included some N/A wage information into OES wage level I and below that could be classified as a wage higher than level I in the future. If DHS
did not incorporate the petitions that fell into the N/A category, then the overall total of petitions would have been understated. DHS analysis used estimates in the Unquantified Costs &
Benefits section to show a possible outcome and distribution of registrations once this rule is implemented.
Comments: A trade association wrote that DHS conducted insufficient data collection to assess the impact of the proposed rule, given that it has OES
skill wage level data for only 56 percent of registered H1B petitions selected in the lottery. The commenter wrote that DHS should review data on all H1B
adjudications to better assess the relative distribution of H1B petitions by OES level, or conduct a survey of H
1B employers to better quantify the impact of the proposed rule by OES
level.
Response: USCIS analyzed the impacts of this rule in an objective manner using the best available data at the time the analysis was written. DHS
has OES wage level data only on the 56
percent of petitions that were selected toward the numerical allocations from FY 2019 and FY 2020. DHS does not have the wage level break down for the 44 percent of petitions that were not selected since those petitions were returned to petitioners without entering data into DHS databases. The wage level break downs for the 56 percent that were selected for adjudication had a similar distribution for both FY 2019
and FY 2020. DHS used this distribution as an estimate of what the future registrations split out by wage levels may look like for the missing 44 percent of petitions.
Comments: An individual commenter said the proposed rule does not analyze the indirect impact the rule will have on the wages of employees, only those directly impacted by the rule. The commenter also wrote that the proposed rule does not consider its impact on
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employers whose higher marginal costs cause them to forego expansion or close down. An individual commenter said that DHS does not provide evidence to support its statement that the proposed rule will have no effect on wages or growth, writing that it is unlikely that the rule will not depress wages and growth.
Response: DHS acknowledges that some petitioners might be impacted in terms of employment, productivity loss, search and hire costs, and profits resulting from labor turnover. The current random lottery system does not guarantee registrants that they will be able to petition for H1B workers, and it could have the same effects and cause companies to search for alternative options. In cases where companies cannot find reasonable substitutes for the labor the H1B beneficiaries would have provided, if selected under the random lottery process, affected petitioners also could lose profits from the lost productivity. In such cases, employers would incur opportunity costs by having to choose the next best alternative to immediately fill the job the prospective H1B worker would have filled. The commenter provided neither an explanation nor a basis to support the claim that wages would be depressed. DHS acknowledges that some employers growth profit could be affected; however, asserting that economic growth would be harmed fails to account for the fact that this rule will not reduce or otherwise affect the statutorily authorized number of initial H1B visas granted per year. USCIS
analyzed the impacts of this rule in an objective manner using the best available data at the time the analysis was written and does not have quantifiable data on the effect on wages or growth.
Comment: A law firm stated that the DHS does not sufficiently quantify the impact of costs to petitioners, including training, labor for substitute workers, loss of productivity, and loss of revenue.
The commenter wrote that, to meet the requirements of E.O. 12866, DHS should explain its justification for proposing changes recognized to have a negative impact on productivity and revenue of petitioners. The commenter also asked DHS to explain how the proposed rule was tailored to ensure it imposed the least possible burden on society as required under E.O. 12866.
Response: Executive Orders 12866
and 13563 direct agencies to assess the costs, benefits, and transfers of available alternatives, and if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic,
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environmental, public health and safety effects, distributive impacts, and equity. DHS analyzed all potential costs, benefits, and transfers of this rule.
While DHS understands there are costs to some populations, there also are benefits to other populations.
Comment: An advocacy group wrote that DHS states that an increase in H
1B recipients with higher salaries will compensate for any loss in international students and early career professionals under the proposed rule. However, the commenter states that DHS does not provide any analysis to this effect and should provide a more precise estimate of the costs associated with changes, particularly whether the rule would have an impact on the ability of employers to attract talented employees.
Response: DHS does not believe that this rule will negatively impact the ability of employers to attract talented employees. Rather, DHS believes that this rule will allow employers to attract the best and the brightest employees.
Comment: A law firm said the costs of the proposal are inconsistent with the aggregate cost savings the agency expected unselected petitions and the government to realize from registration.
OMB designated the proposed rule as an economically significant regulatory action. In the NPRM, DHS estimated that, for a ten-year implementation period, the costs to the public would be more than $15.9 million annualized at 3-percent, and more than $16 million annualized at 7-percent. DHS also acknowledged the possibility that the proposed regulation could result in private sector expenditures exceeding $100 million, adjusted for inflation to $168 million in 2019 dollars, in any 1
year. The costs likely are higher, as the agency has grossly underestimated the time-burden of this proposed regulation, such as suggesting that it will take a mere 20 minutes more to prepare the registration.
Response: DHS acknowledges that this final rule has been designated an economically significant regulatory action by the Office of Information and Regulatory Affairs OIRA, of the Office of Management and Budget. However, OIRA has waived review of this regulation under E.O. 12866, section 6a3A. DHS disagrees that it will take more than 20 minutes to complete the additional information collection associated with the registration tool.
Registrants or petitioners, as applicable, only will be required to provide, in addition to the information already to be collected, the highest OES prevailing wage level that the proffered wage equals or exceeds for the relevant SOC
code in the area of intended
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