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Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Rules and Regulations
report to assist the agency in evaluating the proposed delays impact on any legal, factual, or policy issues raised by the underlying rule. Several commenters expressed strong support of the Departments proposal, and a few commenters encouraged the agency to conduct a full legal review and consider and meaningfully respond to the issues raised in the IFR comments before implementing any changes to wage requirements.
The Department received two comments stating the delay of effective date is needed because the final rule is not reflective of the policy objectives of the Biden Administration. The two commenters, a trade organization and a trade association, supported the proposed effective date delay, reasoning that, consistent with the Biden Administrations Regulatory Freeze Pending Review memorandum, it would provide time to evaluate questions of fact, law, and policy raised in the final rule. One of the commenters argued that events and developments that have occurred since the Department published the final rule on January 14, 2021, should be reviewed as relevant questions of fact, law, and policy. Two universities supported the effective date delay stating the delay will give the Department more time to evaluate policy and substantive issues of the final rule, including determining the needs of the U.S. economy in light of the current context of the pandemic and the Biden Administrations priorities.
Two trade associations supported postponing implementation of the final rule, with one association stating this delay would allow for proper stakeholder input while maintaining the status quo for employers.
In addition, the Department received five comments stating the proposed delay is needed for the Department to address legal concerns raised by stakeholders and litigants in litigation related to the IFR and final rule. For example, a professional association asserted the final rule violated the Administrative Procedure Acts APA
notice-and-comment requirements and argued that the final rule must be delayed in order to provide a proper notice-and-comment period. Another professional association and a trade association argued, for instance, that the final rule did not address concerns they raised in prior comments on the IFR and supported delaying the final rules effective date and compliance dates to allow time for review and reconsideration of the final rules legal and policy shortcomings and issues raised by the stakeholder community.
The Department also received three
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comments supporting a delay of the effective date to allow the agency an opportunity to review decisions issued by multiple courts in litigation related to the rulemaking. For example, a trade association explained the proposed 60day delay will enable the agency to review the final rule and determine it is unjustified, ignores labor market realities, and would harm the countrys economic recovery. The commenter stated in the event the Department does not make such a determination, the delay is needed for courts to render final decisions in related litigation.
Several comments supported the proposed delay on the basis that the additional time will allow the Department to review more thoroughly the final rule and its financial implications for affected industries, including businesses and institutions of higher education, and its impact on the economy. One commenter in this category urged the agency to begin rulemaking to withdraw the final rule.
Lastly, a few comments requested the Department consider further delay of the effective date and/or the compliance dates of the final rule. For example, a trade association stated that given the profound changes in the Departments final rule, a May 14, 2021 effective date is unlikely to avoid significant operational disruptions for many businesses that rely upon various immigrant and non-immigrant workers.
Other comments requested the Department delay the July 1, 2021
transition period to afford the regulated community adequate time to adopt necessary changes and to allow the agency enough time to properly implement forms and electronic filing system changes, as needed.
The Department appreciates the comments received. After carefully reviewing the comments, the Department acknowledges the substantive concerns raised by these commenters, including concerns regarding the Departments methodology in the final rule and notice and comment procedures related to the rulemaking, and the commenters suggestion that the Department should delay the effective date of this rule to review the rulemaking. Given these concerns, the complexity of the regulation, and the issues raised in the litigation challenging the rulemaking, the Department has determined that a 60-day delay of the effective date is needed to provide the Department time to continue its review of the final rule, including evaluating the concerns raised by the commenters and taking additional action as necessary.

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B. Comments Opposing a Delayed Effective Date The Department received four comments that directly addressed and subsequently opposed the proposed delay of the effective date of the final rule. Four commenters stated they generally support the substance of the final rule, and reiterated reasons why the final rule should be implemented.
One of the commenters stated it believes the reforms to the Departments wage levels are long overdue and a delay would prevent protections for workers being implemented and reduce job opportunities and wages. It noted that the current wage methodology is in conflict with the INA and further explained that, while it generally supported the final rule as a step in the right direction, the final rule still conflicts with the INA. A commenter opposed the delay because it supports the methodology used in the final rule and believes a delay could cause uncertainty in hiring processes as well as reduce the amount of time employers have to prepare for compliance. This commenter further stated that the current methodology is on shaky legal ground.
The Department appreciates the comments provided. In response to comments concerning the impact of the Departments proposed delay of effective date of the final rule on U.S.
workers, the delay of the effective date should not reduce any potential benefits to, or otherwise harm, qualified American or H1B workers. Under the final rule, the new methodology and attendant changes to the wage level computations will not begin to be implemented until July 1, 2021; before July 1, the current wage methodology remains the same. Rather, as noted in the proposal and above, delaying the effective date for 60 days would provide the Department an opportunity to review questions of fact, law, and policy raised by the final rule. As noted above, one commenter stated the final rule was a step in the right direction but nonetheless continues to conflict with the INA, providing an example as to why review at this stage is crucial. The 60-day delay announced in this final rule provides the Department time to begin a meaningful review without affecting workers. Finally, the Department may need to propose a further delay of the effective date and accompanying implementation periods due to the complexity of the final rule, as discussed in the Conclusion below, and aims to provide clarity and sufficient time for employers to comply with the regulations.

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