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[Federal Register: February 20, 2001 (Volume 66, Number 34)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Labor Condition Applications and Requirements for Employers Using
Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion
Models; Labor Certification Process for Permanent Employment of Aliens
in the United States
AGENCY: Employment and Training Administration, Labor, in concurrence
with the Wage and Hour Division, Employment Standards Administration,
ACTION: Correction to interim final rule.
SUMMARY: This document contains a correction to the Interim Final Rule
(IFR) published on December 20, 2000 (65 FR 80110), which implemented
recent legislation and clarified existing Departmental rules relating
to the temporary employment in the United States of nonimmigrants under
H-1B visas. As discussed in the preamble to the Interim Final Rule, the
Department concluded that Appendix A to subpart H (Guidance for the
Determination of the ``Actual Wage'') would not be included in the
rule. However, the Department inadvertently omitted the amendatory
instruction to remove the appendix from the Code of Federal
Regulations. This document corrects that error.
DATES: This rule is effective January 19, 2001.
FOR FURTHER INFORMATION CONTACT: Michael Ginley, Director, Office of
Enforcement Policy, Wage and Hour Division, Employment Standards
Administration, Department of Labor, Room S-3510, 200 Constitution
Avenue, NW., Washington, DC 20210. Telephone: (202) 693-0745 (this is
not a toll-free number).
Dale M. Ziegler, Chief, Division of Foreign Labor Certifications,
U.S. Employment Service, Employment and Training Administration,
Department of Labor, Room C-4318, 200 Constitution Avenue, NW.,
Washington, DC 20210. Telephone: (202) 693-3010 (this is not a toll-
SUPPLEMENTARY INFORMATION: On January 5, 1999, the Department published
a Notice of Proposed Rulemaking (NPRM) (64 FR 628), seeking public
comment on proposed revisions to its regulations relating to the
employment of H-1B nonimmigrants which were necessitated by the
enactment of the American Competitiveness and Workforce Improvement Act
of 1998 (ACWIA). The Department also sought further comment on certain
proposals which were previously published for comment as a Proposed
Rule on October 31, 1995.
Among the matters addressed in the Interim Final Rule (65 FR 80191-
80194) was the requirement of section 212(n)(1)(A)(i)(I) of the
Immigration and Nationality Act (INA) that an employer seeking to
employ H-1B nonimmigrants agree that it will pay the nonimmigrants at
least the higher of the prevailing wage or the ``actual wage level paid
by the employer to all other individuals with similar experience and
qualifications for the specific employment in question.'' Specifically,
the Department had sought comment on Appendix A to Subpart H of the
regulations, which contained
guidance and examples of the appropriate methods for determination of
the actual wage for purposes of the H-1B wage requirement. The
underlying regulatory provisions at Secs. 655.731(a)(1), 655.731(b)(2),
and 655.760(a)(3) were not open for notice and comment.
In the Interim Final Rule preamble, the Department fully described
and responded to the comments and stated:
After carefully considering all the comments, the Department has
concluded that Appendix A--which was created in response to
employers' requests for technical guidance--has not served its
intended purpose and has, instead, caused some confusion. The
Department has, therefore, decided that Appendix A will not be
included in the Interim Final Rule. The controlling standards for
determining and documenting an employee's ``actual wage'' are
contained in the current regulation, 20 CFR 655.731(a)(1),
655.731(b)(2), and 655.760(a)(3) (none of which were opened for
comment in the NPRM). If the need arises in the future, the
Department, as appropriate, will provide compliance advice or
technical assistance further explaining the current regulation.
[65 FR 80193]
Although this preamble discussion made the Department's intention
perfectly clear, and the Table of Contents did not contain Appendix A,
the Department neglected to include an explicit instruction in the
regulatory text to delete Appendix A. It is, therefore, necessary that
a correction Rule be issued to achieve the Interim Final Rule's
intention. This Final Rule provides the needed correction, and removes
Appendix A from the H-1B regulations.
The Department is of the view that this correction to an
inadvertent error in the Interim Final Rule is not a rule to which the
procedural requirements of the Administrative Procedure Act or the
various statutes and executive orders relating to rules apply. If this
correction is a rule, however, notice and comment is not required.
Interested parties have had two opportunities to comment on Appendix A.
In addition, the Appendix was an interpretation of Sec. 655.731 and, as
required by the rules of the Federal Register, did not contain new
requirements or restrictions. Furthermore, if the correction is a rule,
the Department finds good cause not to provide further notice and
comment. Such additional notice and comment would be unnecessary and
contrary to the public interest since the public was advised in the
preamble to the Interim Final Rule that the Appendix was deleted and
unnecessary confusion would result if this correction were not made
immediately. For the same reasons, the correction is effective on
January 19, 2001, the effective date of the Interim Final Rule.
This correction contains no paperwork requirements to which the
Paperwork Reduction Act applies. In addition, this action, if a rule,
is not a ``significant regulatory action'' within the meaning of
Executive Order 12866. Furthermore, this action is not a ``major rule''
within the meaning of the Small Business Regulatory Enforcement Act or
an ``unfunded mandate'' within the meaning of Title II of the Unfunded
Mandates Reform Act of 1995. Finally, the action will not have
federalism implications within the meaning of Executive Order 13132,
and a regulatory flexibility analysis is not required by the Regulatory
Accordingly, the Department makes the following correction to the
interim final rule published on December 20, 2000. On page 80233, in
the first column immediately preceding the heading for subpart I,
insert instruction 21a to read as follows:
21a. Appendix A to subpart H of part 655 is removed.
Signed at Washington, DC, this 12th day of February, 2001.
Raymond J. Uhalde,
Deputy Assistant Secretary, Employment and Training Administration.
Thomas M. Markey,
Acting Administrator, Wage and Hour Division, Employment Standards
[FR Doc. 01-4126 Filed 2-16-01; 8:45 am]
BILLING CODE 4510-30-U
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