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Federal Register / Vol. 86, No. 91 / Thursday, May 13, 2021 / Rules and Regulations favor and attract higher skilled workers.
Commenters also argued the Final Rule provides more opportunities to attract and retain foreign workers in the technology, science, finance, and healthcare industries to strengthen U.S.
competitiveness and the economy.
Other commenters supported increasing wage levels for highly-skilled foreign workers so the United States will retain the best foreign talent. An anonymous commenter expressed concern that the proposed delay would subject worthy applicants to continued uncertainty as well as defeat the goal of attracting top talent to the United States. Two individual commenters asserted that implementing the Final Rule now would allow many talented foreign workers who have had to leave the United States return and help contribute to the U.S. economy.
Two anonymous commenters stated that raising wages immediately would benefit foreign students with F1 visas as well as U.S. workers. Other commenters claimed that implementing wage increases without delay would not harm highly qualified international students because after three years of optional practical training OPT their wages will reach the higher wage level.
A few other commenters opposed delaying the implementation of the Final Rule stating it is not fair to international students who have obtained their education in the United States, but then have trouble competing for job opportunities because outsourcing companies hire foreign H
1B workers at lower wages.
One institutional commenter opposed the delay alleging that it would cause companies to continue to hire foreign workers at less than market wages, and that the delay would cause confusion among stakeholders as to what the H
1B wages rules will be after the delay.
Furthermore, it noted that the current methodology was promulgated outside notice and comment rulemaking and the Final Rule is thus more legally defensible. It alleges as well that changing the methodology to the proposed method should not be burdensome on DOL staff. In spite of this, the commenter acknowledges that the wage methodology in the final rule is not perfect, and there is more work to be done to fulfill DOLs duty to protect the integrity of the H1B program and ensure it meets its intent. The commenter added it would like wages to be raised even higher and for the Department to address, in its view, the lax standards for employers when choosing independent wage sources.
The Department notes that this rulemaking is about the proposal to
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delay the effective date of the Final Rule, not the underlying rule itself and, as noted above, serious procedural and substantive concerns have been raised repeatedly as to the viability and defensibility of the Final Rule.
Another policy organization opposed the delay arguing that the Final Rule lessens the risk that U.S. workers would be replaced by cheaper labor from abroad. The commenter noted that the current wages are below market level.
However, much like the aforementioned institutional commenter, this commenter also acknowledged that the proposed wage levels are still too low and urged the Department to set the Level 1 wage to at least the 50th percentile.
These two institutional commenters and a third individual commenter argued that the delay would cost workers billions of dollars over the next decade and cited to the 18-month NPRM. See 86 FR 15154, 15159. One commenter noted that technology companies have performed strongly in the past year as demand for their services have increased, which the commenter believed to mean the companies could remain profitable while paying higher wages. The individual commenter also pointed to the 18-month NPRM and argued that the statement that the Department expects that the increase in wages may incentivize some employers to hire domestic workers rather than H1B
employees is justification for implementing the rule now. See 86 FR
15154, 15158. Finally, the individual commenter stated that adjusting the wage levels to ameliorate the impact from legal immigration on domestic workers wages should be the immediate priority.
The Department appreciates the comments provided and addresses them in turn. First, the Department continues to be as diligent as possible in investigating and preventing abuse within the H1B program, and shares the commenters concerns for the protection of U.S. and H1B workers.
The Department is unable to address commenters concerns related to alleged abuse of the H1B lottery system or this visa program generally at this time since it is beyond the scope of the Departments regulatory authority and beyond the scope of this rulemaking.
Second, the Department notes that while it has been suggested that determining the wages is something straightforward and requires nothing more complex than what is currently done, this is not the case. As mentioned previously, the Department has determined that it needs
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approximately eight months to compute and validate prevailing wage data covering all occupations and geographic areas, complete and thoroughly test modifications to the OFLC FLAG
system, train staff, and conduct sufficient public outreach to ensure an orderly implementation should the Final Rule go into effect. More specifically, under a Memorandum of Understanding MOU, changes to the computation of prevailing wages for Levels I and IV, data categories, or other specific terms must be agreed to by OFLC and BLS six months in advance of the deliverable date. 86 FR 15154, 15156. In addition to prevailing wages for occupations covered by all industries, BLS must produce a separate set of prevailing wages for occupations in institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, or governmental research agencies. Once the initial wage estimation process is completed, BLS then creates prevailing wage estimates for specific occupations and geographic areas, and transmits the files to each State for validation and confidentiality review, since the actual collection of occupational wage data from employer establishments is conducted by the States. After addressing any corrections or errors and receiving confirmation from the States, BLS creates the final prevailing wage estimates and applies any suppression or confidentiality rules. These final prevailing wage estimates undergo a rigorous internal review by BLS
economists and statisticians who then deliver to OFLC the final set of prevailing wages for Levels I and IV for specific occupations and geographic areas. After receiving the final prevailing wages for Levels I and IV, OFLC would need approximately one month to compute and review initial prevailing wage estimates for the two intermediate levels according to the mathematical formula identified in the statute. Once validated for accuracy, OFLC must then load and thoroughly test integration of the final prevailing wage data into its online Foreign Labor Certification Data Center system, accessible at http
www.flcdatacenter.com, as well as the FLAG system used to assign the leveled prevailing wages and issue official PWDs for each occupation and geographic area to employers. The final process for OFLC to load, thoroughly test, and implement the official prevailing wage data takes up to an additional one month.
An individual commenter stated that this justification for extension suggests
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