Monk-Eye
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- Feb 3, 2018
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" Biden Public Policy To Delay Fair Competition For US Worker Wages "
* Administration Of Put US Workers Secondary To Foreign Nationals *
What is the purpose of the delay ?
www.federalregister.gov
On February 1, 2021, the Department published a notice in the Federal Register proposing to delay the effective date of the final rule for 60 days from March 15, 2021, until May 14, 2021. The Department based this action on the Presidential directive as expressed in the memorandum of January 20, 2021, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review.” The memorandum directs agencies to consider delaying the effective date for regulations for the purpose of reviewing questions of fact, law, and policy raised therein. Accordingly, ETA proposed to delay the effective date for the final rule entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” to May 14, 2021, given the complexity of the regulation.
www.federalregister.gov
The INA prohibits the admission of certain employment-based immigrants unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that (1) there are not sufficient workers who are able, willing, qualified and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (2) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.[3]
On October 8, 2020, the Department published an Interim Final Rule (IFR) in the Federal Register, 85 FR 63872, revising the methodology the Department uses to determine prevailing wage levels for the H-1B, H-1B1, E-3, and PERM programs. As explained in the IFR, the Department concluded the existing wage levels were not consistent with the relevant statutory requirement that a government survey employed to determine the prevailing wage provide four wage levels commensurate with experience, education, and level of supervision.[48] The Department also determined that the existing wage levels were artificially low and provided an opportunity for employers to hire and retain foreign workers at wages well below what their U.S. counterparts earn, creating an incentive to prefer foreign workers to U.S. workers, an incentive that is at odds with the statutory scheme and causes downward pressure on the wages of the domestic workforce. Therefore, the Department revised wage provisions at 20 CFR 655.731 and 656.40 to adjust the existing wage levels to ensure the wage levels reflect the wages paid to U.S. workers with similar experience, education, and responsibility to those possessed by similarly employed foreign workers.
Notwithstanding the district courts' orders to set aside the IFR on procedural grounds, the U.S. Supreme Court has acknowledged and affirmed the proposition that a procedurally flawed IFR does not taint a final rule relying upon an IFR as a proposed rule.[56] The Department is satisfied that it meets the APA's objective requirements necessary for the promulgation of a final rule in this case. Specifically, the Department's IFR provided sufficient notice to the public by allowing for a 30 day comment period; [57] “gave interested persons an opportunity to participate in the rule making through submission of written data, views or arguments”; [58] the rule contained a “concise general statement of their basis and purpose”; [59] and the rule will be published more than 30 days before it becomes effective.[60] Accordingly, the Department maintains the legal authority to pursue this final rule based upon its compliance with the APA's procedural requirements satisfied in the IFR.
* Administration Of Put US Workers Secondary To Foreign Nationals *
What is the purpose of the delay ?
Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States; Delay of Effective Date
On February 1, 2021, the Department of Labor (DOL or Department) proposed to delay the effective date of the final rule entitled ``Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,'' published in the Federal Register on January 14,...
www.federalregister.gov
Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States
In this final rule, the Department of Labor (the Department or DOL) adopts with changes an Interim Final Rule (IFR) that amended Employment and Training Administration (ETA) regulations governing the prevailing wages for employment opportunities that United States (U.S.) employers seek to fill...
www.federalregister.gov
On October 8, 2020, the Department published an Interim Final Rule (IFR) in the Federal Register, 85 FR 63872, revising the methodology the Department uses to determine prevailing wage levels for the H-1B, H-1B1, E-3, and PERM programs. As explained in the IFR, the Department concluded the existing wage levels were not consistent with the relevant statutory requirement that a government survey employed to determine the prevailing wage provide four wage levels commensurate with experience, education, and level of supervision.[48] The Department also determined that the existing wage levels were artificially low and provided an opportunity for employers to hire and retain foreign workers at wages well below what their U.S. counterparts earn, creating an incentive to prefer foreign workers to U.S. workers, an incentive that is at odds with the statutory scheme and causes downward pressure on the wages of the domestic workforce. Therefore, the Department revised wage provisions at 20 CFR 655.731 and 656.40 to adjust the existing wage levels to ensure the wage levels reflect the wages paid to U.S. workers with similar experience, education, and responsibility to those possessed by similarly employed foreign workers.
Notwithstanding the district courts' orders to set aside the IFR on procedural grounds, the U.S. Supreme Court has acknowledged and affirmed the proposition that a procedurally flawed IFR does not taint a final rule relying upon an IFR as a proposed rule.[56] The Department is satisfied that it meets the APA's objective requirements necessary for the promulgation of a final rule in this case. Specifically, the Department's IFR provided sufficient notice to the public by allowing for a 30 day comment period; [57] “gave interested persons an opportunity to participate in the rule making through submission of written data, views or arguments”; [58] the rule contained a “concise general statement of their basis and purpose”; [59] and the rule will be published more than 30 days before it becomes effective.[60] Accordingly, the Department maintains the legal authority to pursue this final rule based upon its compliance with the APA's procedural requirements satisfied in the IFR.
