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tkelley on DSKBCP9HB2PROD with RULES3

Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations components use to comply with NEPA
and the Council on Environmental Quality CEQ regulations for implementing NEPA, 40 CFR parts 15001508.
The CEQ regulations allow federal agencies to establish, with CEQ review and concurrence, categories of actions categorical exclusions that experience has shown do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment EA or Environmental Impact Statement EIS.209 Categorical exclusions established by DHS are set forth in Appendix A of the Instruction Manual. Under DHS NEPA
implementing procedures, for an action to be categorically excluded, it must satisfy each of the following three conditions: 1 The entire action clearly fits within one or more of the categorical exclusions; 2 the action is not a piece of a larger action; and 3 no extraordinary circumstances exist that create the potential for a significant environmental effect.210
As discussed in more detail throughout this final rule, DHS is amending regulations governing the selection of registrations or petitions, as applicable, toward the annual H1B
numerical allocations. This final rule establishes that, if more registrations are received during the annual initial registration period or petition filing period, if applicable than necessary to reach the applicable numerical allocation, USCIS will rank and select the registrations or petitions, if the registration process is suspended received on the basis of the highest OES
prevailing wage level that the proffered wage equals or exceeds for the relevant SOC code and in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I and below. If a proffered wage falls below an OES wage level I, because the proffered wage is based on a prevailing wage from another legitimate source other than OES or an independent authoritative source, USCIS will rank the registration in the same category as OES wage level I.211
Generally, DHS believes NEPA does not apply to a rule intended to change a discrete aspect of a visa program because any attempt to analyze its potential impacts would be largely 209 See
40 CFR 1507.3b2ii, 1508.4.
Manual section V.B2ac.
211 If the proffered wage is expressed as a range, USCIS would make the comparison using the lowest wage in the range.
210 Instruction
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speculative, if not completely so. This final rule does not propose to alter the statutory limitations on the numbers of nonimmigrants who: May be issued initial H1B visas or granted initial H
1B nonimmigrant status, consequently will be admitted into the United States as H1B nonimmigrants, will be allowed to change their status to H1B, or will extend their stay in H1B status.
DHS cannot reasonably estimate whether the wage level-based ranking approach to select H1B registrations or petitions in any year in which the registration requirement were suspended that DHS is implementing will affect how many petitions will be filed for workers to be employed in specialty occupations or whether the regulatory amendments herein will result in an overall change in the number of H1B petitions that ultimately will be approved, and the number of H1B workers who will be employed in the United States in any FY. DHS has no reason to believe that these amendments to H1B regulations will change the environmental effect, if any, of the existing regulations.
Therefore, DHS has determined that, even if NEPA applied to this action, this final rule clearly fits within categorical exclusion A3d in the Instruction Manual, which provides an exclusion for promulgation of rules . . . that amend an existing regulation without changing its environmental effect. This final rule will maintain the current human environment by proposing improvements to the H1B program that will take effect during the economic crisis caused by COVID19 in a way that more effectively will prevent an adverse impact from the employment of H1B
workers on the wages and working conditions of similarly employed U.S.
workers. This final rule is not a part of a larger action and presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this action is categorically excluded and no further NEPA analysis is required.
I. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 PRA Public Law 10413, 44
U.S.C. 3501, et seq., all Departments are required to submit to the Office of Management and Budget, for review and approval, any reporting requirements inherent in a rule. In compliance with the PRA, DHS published a notice of proposed rulemaking on November 2, 2020, in which it requested comments on the revisions to the information collections associated with this
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rulemaking.212 DHS responded to those comments in Section IV.E.2. of this final rule.
The following is an overview of the information collections associated with this final rule:
1. USCIS H1B Registration Tool 1 Type of Information Collection:
Revision of a Currently Approved Collection.
2 Title of the Form/Collection: H1B
Registration Tool.
3 Agency form number, if any, and the applicable component of the DHS
sponsoring the collection: OMB64;
USCIS.
4 Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Business or other forprofit. USCIS will use the data collected through the H1B Registration Tool to select a sufficient number of registrations projected as needed to meet the applicable H1B cap allocations and to notify registrants whether their registrations were selected.
5 An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: The estimated total number of respondents for the information collection H1B Registration Tool is 275,000, and the estimated hour burden per response is 0.833 hours.
6 An estimate of the total public burden in hours associated with the collection: The total estimated annual hour burden associated with this collection of information is 229,075
hours.
7 An estimate of the total public burden in cost associated with the collection: The estimated total annual cost burden associated with this collection of information is $0.
2. USCIS Form I129
1 Type of Information Collection:
Revision of a Currently Approved Collection.
2 Title of the Form/Collection:
Petition for a Nonimmigrant Worker.
3 Agency form number, if any, and the applicable component of the DHS
sponsoring the collection: I129; USCIS.
4 Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Business or other forprofit. USCIS uses the data collected on this form to determine eligibility for the requested nonimmigrant petition and/or requests to extend or change nonimmigrant status. An employer or agent, where applicable uses this form to petition USCIS for an alien to 212 See
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85 FR 69236, 692612.

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