This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

8543 

Vol. 86, No. 24 

Monday, February 8, 2021 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 214 

[CIS No. 2680–21; Docket No: USCIS 2020– 

0019] 

RIN 1615–AC61 

Modification of Registration 

Requirement for Petitioners Seeking 

To File Cap-Subject H–1B Petitions; 

Delay of Effective Date 

AGENCY: U.S. Citizenship and 

Immigration Services (USCIS), U.S. 

Department of Homeland Security 

(DHS). 

ACTION: Final rule; delay of effective 

date; request for comments. 

SUMMARY: On January 8, 2021, DHS 

published a final rule, Modification of 

Registration Requirement for Petitioners 

Seeking To File Cap-Subject H–1B 

Petitions (H–1B Selection Final Rule) 

amending regulations governing the 

process by which U.S. Citizenship and 

Immigration Services (USCIS) selects 

H–1B registrations for the filing of H–1B 

cap-subject petitions (or H–1B petitions 

for any year in which the registration 

requirement is suspended), by generally 

first selecting registrations based on the 

highest Occupational Employment 

Statistics (OES) prevailing wage level 

that the proffered wage equals or 

exceeds for the relevant Standard 

Occupational Classification (SOC) code 

and area(s) of intended employment. 

The Department is delaying the rule’s 

effective date until December 31, 2021, 

because USCIS will not have adequate 

time to complete system development, 

thoroughly test the modifications, train 

staff, and conduct public outreach 

needed to ensure an effective and 

orderly implementation of the H–1B 

Selection Final Rule by the time the 

initial registration period will be open 

for the upcoming fiscal year (FY) 2022 

H–1B cap season. During the delay, 

while USCIS works through the issues 

associated with implementation, DHS 

leadership will also evaluate the January 

8th rule and its associated policies, as 

is typical of agencies at the beginning of 

a new Administration. 

DATES: As of February 8, 2021, the 

effective date of the final rule published 

January 8, 2021, at 86 FR 1676, is 

delayed to December 31, 2021. DHS is 

accepting public comments on this 

delay until March 10, 2021. 

ADDRESSES: You may submit comments 

on the entirety of this final rule package, 

identified by DHS Docket No. USCIS– 

2020–0019, through the Federal 

eRulemaking Portal: http://

www.regulations.gov. Follow the 

website instructions for submitting 

comments. Comments submitted in a 

manner other than the one listed above, 

including emails or letters sent to DHS 

or USCIS officials, will not be 

considered comments on this final rule 

and may not receive a response from 

DHS. Please note that DHS and USCIS 

cannot accept any comments that are 

hand-delivered or couriered. In 

addition, USCIS cannot accept 

comments contained on any form of 

digital media storage devices, such as 

CDs/DVDs and USB drives. Due to 

COVID–19, USCIS is also not accepting 

mailed comments at this time. If you 

cannot submit your comment by using 

http://www.regulations.gov, please 

contact Samantha Deshommes, Chief, 

Regulatory Coordination Division, 

Office of Policy and Strategy, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, by 

telephone at 240–721–3000 for alternate 

instructions. 

FOR FURTHER INFORMATION CONTACT: 

Charles L. Nimick, Chief, Business and 

Foreign Workers Division, U.S. 

Citizenship and Immigration Services, 

5900 Capital Gateway Drive, Camp 

Springs, MD 20746; telephone 240–721– 

3000 (this is not a toll-free number). 

Individuals with hearing or speech 

impairments may access the telephone 

number above via TTY by calling the 

toll-free Federal Information Relay 

Service at 1–877–889–5627 (TTY–TDD). 

SUPPLEMENTARY INFORMATION: 

I. Public Participation

DHS invites all interested parties to

participate in this rulemaking by 

submitting written data, views, 

comments, and arguments on all aspects 

of this final rule. DHS also invites 

comments that relate to the economic, 

environmental, or federalism effects that 

might result from this final rule. 

Comments must be submitted in 

English, or an English translation must 

be provided. Comments that will 

provide the most assistance to DHS in 

implementing these changes will: 

reference a specific portion of the final 

rule; explain the reason for any 

recommended change; and include data, 

information, or authority that supports 

such a recommended change. 

Comments submitted in a manner other 

than those listed in the ADDRESSES

section, including emails or letters sent 

to DHS or USCIS officials, will not be 

considered comments on the final rule. 

Please note that DHS and USCIS cannot 

accept any comments that are handdelivered or couriered. In addition, 

USCIS cannot accept mailed comments 

contained on any form of digital media 

storage devices, such as CDs/DVDs and 

USB drives. 

Instructions: If you submit a 

comment, you must include the agency 

name (U.S. Citizenship and Immigration 

Services) and the DHS Docket No. 

USCIS–2020–0019 for this rulemaking. 

Regardless of the method used for 

submitting comments or material, all 

submissions will be posted, without 

change, to the Federal eRulemaking 

Portal at http://www.regulations.gov, 

and will include any personal 

information you provide. Therefore, 

submitting this information makes it 

public. You may wish to consider 

limiting the amount of personal 

information that you provide in any 

voluntary public comment submission 

you make to DHS. DHS may withhold 

information provided in comments from 

public viewing that it determines may 

impact the privacy of an individual or 

is offensive. For additional information, 

please read the Privacy and Security 

Notice available at http://

www.regulations.gov. 

Docket: For access to the docket and 

to read background documents or 

comments received, go to http://

www.regulations.gov, referencing DHS 

Docket No. USCIS–2020–0019. You may 

also sign up for email alerts on the 

online docket to be notified when 

comments are posted or a final rule is 

published. 


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8544 Federal Register / Vol. 86, No. 24 / Monday, February 8, 2021 / Rules and Regulations 

1 86 FR 1676. The H–1B Selection Final Rule was 

approved by Chad F. Wolf in his capacity as Acting 

Secretary of Homeland Security. DHS is aware that 

multiple courts have indicated or held that Mr. 

Wolf did not have valid authority to act, and, 

therefore, did not have authority to sign rules in 

that capacity. DHS also is aware that, following 

issuance of the rule, Peter T. Gaynor and Mr. Wolf 

took steps to ratify the H–1B Selection Final Rule. 

See DHS Delegation No. 23028, Delegation to the 

Under Secretary for Strategy, Policy, and Plans to 

Act on Final Rules, Regulations, and Other Matters 

(Jan. 12, 2021); Chad F. Wolf, Ratification (Jan. 14, 

2021). By issuing this rule, DHS states no position 

on Mr. Gaynor’s or Mr. Wolf’s actions or authority. 

2 Development of the new system has been 

ongoing since publication of the final rule, however 

current estimates indicate that development work 

will not be complete before February 19, 2021. 

Testing of the system may commence upon 

completion of system development, which only 

leaves one to two weeks (depending on when the 

initial registration period opens), in a best case 

scenario, to test the system, identify any bugs, 

conduct additional development to resolve 

identified bugs, complete additional testing to 

ensure proper functionality, conduct internal 

training, and provide outreach to the public. 

3The Registration Requirement for Petitioners 

Seeking to File H–1B Petitions on Behalf of CapSubject Aliens Final Rule, 84 FR 888 (Jan. 31, 2019), 

made clear that implementation of the registration 

tool requires significant development, testing and 

stakeholder outreach that cannot reasonably happen 

in a few weeks. As a result, DHS delayed 

implementation of the initial registration process 

for a full year to develop, test, and conduct 

stakeholder outreach. The H–1B Selection Final 

Rule would also benefit from a similar delay to 

develop, thoroughly test, and conduct stakeholder 

training on the modified registration tool, including 

training on identifying the wage level that should 

be used for selection. While there was an 

aspirational hope that the H–1B Selection Final 

Rule could be implemented in time for the FY 22 

selection process, that hope has proven misguided. 

II. Background 

On January 8, 2021, DHS published 

the H–1B Selection Final Rule, 

Modification of Registration 

Requirement for Petitioners Seeking To 

File Cap-Subject H–1B Petitions, 

amending regulations governing the 

process by which USCIS selects H–1B 

registrations for the filing of H–1B capsubject petitions (or H–1B petitions for 

any year in which the registration 

requirement is suspended). Under the 

rule, USCIS would generally select 

H–1B registrations based on proffered 

wages and corresponding prevailing 

wage levels. Specifically, USCIS would 

first select registrations with proffered 

wages that meet or exceed the highest 

OES prevailing wage level for the 

relevant SOC code and area(s) of 

intended employment.1

The H–1B Selection Final Rule is 

currently scheduled to go into effect on 

March 9, 2021. As discussed in greater 

detail below, after further consideration, 

USCIS has determined that the final 

rule’s 60-day effective date does not 

afford USCIS sufficient time between 

the publication of the rule on January 8, 

2021, and March 9, 2021, to complete 

the development and thoroughly test the 

modifications needed in the H–1B 

registration system to sufficiently 

minimize technical risks that result 

from a compressed testing schedule, as 

well as to amend policies and train staff 

to ensure the effective and orderly 

administration of the cap under the 

H–1B Selection Final Rule. By this 

action, DHS is delaying the H–1B 

Selection Final Rule until December 31, 

2021, and is applying the regulations 

currently in place (random selection) to 

the initial registration period, and, most 

likely, any subsequent registration 

period for the FY 2022 registration 

process. 

DHS expects that delaying the rule to 

December 31, 2021, will provide USCIS 

sufficient time to develop, thoroughly 

test, and implement the modifications to 

the registration system and selection 

process and give stakeholders sufficient 

time to adjust to new procedures arising 

from the new rule. The publication of 

the final rule on January 8, 2021, 

finalized a new selection process 

requiring, from a technical standpoint, 

that a new algorithm be developed, 

thoroughly tested, and implemented in 

the form of an electronic registration 

tool. The publication date of the final 

rule only affords six weeks of 

development time, and less than two 

weeks to complete internal end-to-end 

testing and external performance testing 

with DHS OneNet, the DHS network. 

The selection logic is a fundamental 

part of the registration tool, and the 

H–1B Selection Final Rule created more 

complexity in the logic calculation by 

adding several versions of lotteries that 

must be developed, thoroughly tested 

and implemented. This additional 

complexity essentially requires a 

complete rebuilding of the registration 

tool that was developed for the FY 2021 

selection process.2 In light of these 

technical challenges, DHS now believes 

that there is not adequate time to 

develop and thoroughly test the new 

H–1B registration system, conduct 

training and provide outreach on such 

changes to the regulated public prior to 

the start of the FY22 initial registration 

period.3

As indicated below, DHS wants to 

ensure the orderly and efficient 

administration of the H–1B numerical 

allocations and wants to avoid 

disruption to the regulated public by 

affording itself sufficient time to fully 

modify and thoroughly test the changes 

to the H–1B registration system, 

minimize technical risks that result 

from a compressed testing schedule, and 

provide the regulated public enough 

time to become familiar with those 

changes to facilitate full compliance 

with the new regulatory requirements. 

While DHS considered other 

alternatives, including a shorter term 

delay (such as a delay of 60 days, or a 

delay to the start of the next fiscal year, 

October 1, 2021), DHS believes that a 

longer delay is needed to avoid the 

confusion and disparate treatment of 

registrants that would result if a new 

rule took effect during the initial 

registration period, or a subsequent 

registration and selection period, for the 

FY 2022 numerical allocations, 

particularly if USCIS needs to open a 

subsequent registration period later this 

year to ensure full utilization of the FY 

2022 numerical allocations. DHS cannot 

predict, with full certainty, the demand 

for H–1B visas for FY 2022 given the 

current state of the U.S. economy, the 

continued COVID–19 public health 

emergency, and efforts to address it in 

the United States and abroad. Thus, 

DHS cannot predict whether it will be 

necessary to continue to accept 

registrations after the initial registration 

period for the FY 2022 numerical 

allocations closes, or whether USCIS 

will need to reopen the H–1B 

registration period later in the 2021 

calendar year to generate the number of 

H–1B cap petitions projected as needed 

to reach the FY 2022 numerical 

allocations. Should USCIS need to open 

a subsequent registration period and the 

H–1B Selection Final Rule is in effect at 

that time, that would mean that H–1B 

registrations for the same fiscal year 

would be selected under two different 

standards, thus causing confusion and 

disparate treatment among H–1B 

registrants for FY 2022. Further, if 

USCIS needed to select additional 

registrations after the H–1B Selection 

Final Rule takes effect, but must 

continue to select from among those 

submitted before the H–1B Selection 

Final Rule takes effect (e.g. submitted 

during the initial registration period), 

the submitted registrations would not 

contain the necessary data to make a 

wage level selection as such data would 

only be collected after the H–1B 

Selection Final Rule, and associated 

revisions to data collection, take effect. 

The H–1B Selection Final Rule does not 

have a mechanism whereby USCIS 

could request additional information 

from registrants in order to apply a new 

regulatory scheme. Furthermore, 

applying a new regulation to 

registrations submitted under the 

current regulations would lead to 

disparate treatment of registrants who 

submitted registrations during the same 

initial registration period and would 


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Federal Register / Vol. 86, No. 24 / Monday, February 8, 2021 / Rules and Regulations 8545 

4As indicated above, until very recently, USCIS 

had hoped that it would be able to modify and 

thoroughly test the H–1B registration system in time 

to implement the H–1B Selection Final Rule on 

March 9, 2021. In reliance on that hope, and given 

COVID–19 related challenges, as well as ongoing 

budget constraints, USCIS has not initiated steps to 

staff up for a possible suspension of the FY 2022 

registration process, which would be the first in 

many steps required to utilize this alternative for 

implementing the H–1B Selection Final Rule. 

Therefore, this is not a viable option for USCIS. 

have the potential to disturb their 

reliance interests. 

After determining that there is not 

adequate time for USCIS to complete the 

development and thoroughly test the 

modifications to the H–1B registration 

system, train staff, and conduct outreach 

on the H–1B Selection Final Rule, DHS 

also considered an alternative to 

delaying the H–1B Selection Final Rule, 

i.e. having USCIS suspend the 

registration process for FY 2022 under 

8 CFR 214.2(h)(8)(iv) and apply the new 

rule to the petition-based selection 

process. However, USCIS determined 

that suspending the registration process 

would have deleterious impacts on the 

FY 2022 selection process, as applying 

the new selection methodology to a 

petition-based selection process would 

be exceedingly difficult and require 

even more time to operationalize, 

particularly given COVID–19 and the 

difficulty the agency would face in 

staffing up to pivot to in-person intake, 

sorting, and selection process. For 

example, last year USCIS experienced 

significant difficulty staffing the Service 

Centers with contract staff to intake 

petitions during the petition filing 

season, even considering that the 

registration-based selection process 

significantly reduced the number of 

petitions filed at one time. Initial hiring 

of sufficient contractor staff to support 

USCIS petition intake was incredibly 

difficult and, due to COVID–19, data 

entry was significantly delayed. It took 

several weeks to complete data entry 

and reject petitions that did not meet 

the regulatory requirements (e.g. those 

filed with incorrect fees), which 

eliminated the ability of some 

petitioners to refile their petitions 

within the assigned filing window 

because of this delay. Suspending the 

registration process entirely for FY 2022 

would mean that, during the first week 

of April, USCIS would receive petitions 

from all employers seeking cap-subject 

H–1B workers (i.e., not only those 

whose registrations are selected in 

advance) through a paper-based process 

(e.g. U.S. mail, commercial courier), and 

would require a significant ramping up 

in contractor staffing. Arranging timely 

contractor staffing typically requires 

several months of advanced planning 

(e.g. announcing positions, receiving 

applications, running background 

checks on applicants, onboarding, and 

training), and therefore cannot be 

achieved in a timely manner if USCIS 

were to retain the March 9, 2021 

effective date.4

Furthermore, because the selection 

process would be dependent on wage 

level, the scope of work for contractor 

staff would require not only initial 

review of petitions for completeness and 

correct filing fees, but also to identify 

the wage levels that would be used to 

rank them for purposes of the selection 

process. Petitions that do not contain 

required wage information would have 

to be rejected. Because the scope of 

intake work would significantly expand, 

the time to complete intake would be 

lengthened. 

Moreover, reverting to a paper-based 

selection process would re-introduce 

additional uncertainties into the H–1B 

selection process that the electronic 

registration process eliminated. For 

example, in order to conduct the paperbased selection process, USCIS would 

likely have to suspend premium 

processing of H–1B petitions which 

would further delay the processing of 

petitions. 

The aforementioned problems are 

significantly aggravated by the COVID– 

19 pandemic. In particular, to ensure 

sufficient physical distancing of staff on 

premises, USCIS has already made 

plans to evenly distribute the H–1B 

petition adjudication workload for FY 

2022 between four Service Centers: 

California Service Center, Nebraska 

Service Center, Texas Service Center, 

and Vermont Service Center. If USCIS 

were to suspend the electronic 

registration process in order to 

implement the H–1B Selection Rule to 

conduct the FY 2022 selection process, 

USCIS would require a significant 

amount of time to staff up and train staff 

at the Nebraska and Texas Service 

Centers because those Service Centers 

had never previously conducted 

petition-based intake and selection. 

Additionally, because USCIS has 

already made plans to evenly distribute 

the H–1B petition adjudication 

workload for FY 2022 between four 

Service Centers, current budget and 

planning for the California Service 

Center and Vermont Service Center does 

not provide enough resources required 

for those two centers to handle the 

entire workload and to quickly pivot to 

a petition-based filing system. 

Finally, the petition-based process 

would require time for the public to 

pivot and prepare H–1B petitions, 

including obtain certified Labor 

Condition Applications (LCAs) from the 

U.S. Department of Labor (DOL) for 

submission during the first week of 

April. This change could impact DOL 

operations because a far larger number 

of LCAs than anticipated with the 

registration-based system would be filed 

in a compressed time period, and DOL 

would need to ensure they are 

processed in accordance with the 

statutory and regulatory processing 

timeframe of 7 working days. 20 CFR 

655.730(b). This is additional cost for 

the public to prepare and submit 

petitions when they do not have notice 

as to whether they are or will be 

selected. For these several reasons, 

USCIS determined that reverting to a 

paper-based selection process in order 

to implement the H–1B Selection Final 

Rule during FY 2022 was not a viable 

alternative. 

Therefore, to ensure USCIS will not 

be incapable of administering the H–1B 

cap selection process and both avoid 

concerns associated with reverting to a 

paper-based selection process, as well as 

applying two separate regulatory 

schemes to the H–1B selection process, 

DHS believes that delaying the effective 

date of the H–1B Selection Final Rule 

until December 31, 2021, will provide 

sufficient time to complete the selection 

process for the FY 2022 numerical 

allocations, thus avoiding unnecessary 

confusion and possible inequitable 

results as well as more time for USCIS 

to modify and test its systems, train 

staff, and conduct public outreach. 

During the period of the delayed 

effective date, while DHS works through 

the issues associated with 

implementation, DHS leadership will 

also evaluate the January 8th rule and 

its associated policies, as is typical of 

agencies at the beginning of a new 

Administration. 

Given the longer delay, USCIS expects 

that it will select from among all of the 

registrations properly submitted toward 

the FY 2022 H–1B numerical allocations 

based on the current (random selection) 

regulations that will be in effect when 

USCIS first begins accepting 

registrations or petitions toward the FY 

2022 numerical allocations. 

DHS also believes that December 31, 

2021, while most likely to extend 

beyond when USCIS has determined 

that it has received enough petitions 

projected as needed to reach the FY 

2022 numerical allocations, also 

balances the competing need to ensure 

that the regulated public has sufficient 

advance notice and certainty as to the 

rules that will be in effect for the FY 

2023 H–1B numerical allocations. 


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8546 Federal Register / Vol. 86, No. 24 / Monday, February 8, 2021 / Rules and Regulations 

5 5 U.S.C. 553(b)(B). 

6 5 U.S.C. 553(d). 

7 86 FR at 1710. 8 86 FR at 1710. 

III. Statutory and Regulatory 

Requirements 

A. Administrative Procedure Act 

This rule is being issued without prior 

notice and opportunity to comment and 

with an immediate effective date 

pursuant to 5 U.S.C. 553(b)(B) and (d). 

The Administrative Procedure Act 

(APA), 5 U.S.C. 551 et seq., authorizes 

an agency to issue a rule without prior 

notice and opportunity to comment 

when the agency, for good cause, finds 

that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ 5 Similarly, the 

APA requires agencies to provide at 

least a 30-day delayed effective date for 

substantive rules,6 except where the 

agency provides good cause to forgo this 

requirement. DHS has good cause to 

delay the H–1B Selection Final Rule’s 

effective date without advance notice 

and comment because immediate 

implementation would be 

impracticable. Implementing the H–1B 

Selection Final Rule on March 9, 2021, 

would require USCIS to make and test 

major H–1B registration system 

modifications, revise internal 

procedures, train staff, and offer training 

to the regulated public, before the 

March 2021 start of FY 2022 H–1B cap 

filing season. While USCIS initially 

assessed that it would have sufficient 

time to undertake these changes and 

advised the regulated public 

accordingly in the H–1B Selection Final 

Rule,7 upon further review, USCIS has 

determined that it will not have 

sufficient time to ensure an orderly and 

effective implementation of the changes 

to the H–1B registration system in time 

for the FY 2022 H–1B cap season, 

including time to make and thoroughly 

test system modifications, train staff, 

and conduct outreach. In addition and 

as discussed in detail above, DHS 

determined that USCIS suspending the 

registration process and instead 

applying the H–1B Selection Final Rule 

through a paper-based petition selection 

process is not a viable alternative 

because it would have deleterious 

effects on both the regulated public and 

the agency. 

In addition, DHS recognizes that 

commenters responding to the H–1B 

Selection Notice of Proposed 

Rulemaking requested that DHS delay 

implementation of the H–1B Selection 

Final Rule because of insufficient time 

for them to adapt to a new regulatory 

regime. Commenters indicated that 

immediate implementation would 

impose an unreasonable burden on 

prospective petitioners and beneficiaries 

because changes so close to the 

beginning of that cap season would 

adversely impact U.S. employers and 

would create uncertainty and confusion. 

Multiple commenters said companies 

already have made hiring decisions 

based on the existing registration 

system, so delaying implementation 

until the FY 2023 cap filing season (set 

to begin in March 2022) would give the 

regulated community time to adjust. 

Some commenters disagreed, stating 

that there was sufficient time for DHS, 

employers, and others to adjust to the 

changes.8

Upon further consideration of these 

comments, in addition to concerns that 

USCIS lacks adequate time to make and 

thoroughly test system modifications, 

revise internal procedures, train staff, 

and offer training to the regulated 

public, and concerns that reverting to a 

paper-based selection process also 

would have adverse effects on the 

regulated public and the agency, DHS 

believes that providing the regulated 

public with only 60 days (with a current 

effective date of March 9, 2021) to adapt 

to new regulatory requirements and 

modifications of the H–1B registration 

system before the FY 2022 H–1B cap 

registration season would cause 

confusion and very likely would 

significantly disrupt the orderly 

administration of the H–1B cap. This is 

particularly so since, as described 

above, USCIS believes it can neither 

stand-up, thoroughly test, and therefore 

deploy the H–1B registration system 

changes and thus would not be able to 

conduct outreach on such changes to 

the regulated public in advance of 

implementation based on the current 

March 9, 2021 effective date, nor can it 

successfully revert to a paper-based 

petition selection process on this 

timeline. In addition, DHS believes that 

the possibility of having two different 

regulatory schemes apply to the same 

fiscal year would create significant 

confusion for the regulated public that 

would not have been reasonably 

foreseeable; the same is true for 

reverting to a paper-based petition 

selection process. Similarly, reverting to 

a paper-based petition process in order 

to implement the H–1B Selection Final 

Rule, with so little lead time to develop 

a process for sorting and selecting from 

among potentially two hundred 

thousand petitions, hiring temporary 

contract staff during the national health 

emergency to handle intake of the 

petitions, and train staff on how to 

conduct a new wage-based selection 

process in this context, as well as no 

lead time to offer outreach to the 

regulated public, would similarly 

disrupt the expectations of the regulated 

public, and adversely affect the ability 

of at least some petitioners to participate 

in the selection process for FY 2022. 

Therefore, DHS is delaying the effective 

date of the H–1B Selection Final Rule to 

December 31, 2021. 

Current regulations at 8 CFR 

214.2(h)(8)(iii)(A)(3) require that the 

registration period start at least 14 

calendar days before the earliest date on 

which H–1B cap-subject petitions may 

be filed for a particular fiscal year (i.e., 

April 1, 2021, or shortly thereafter for 

FY 2022). Therefore, USCIS must open 

the registration period some time in 

early- to mid-March. Delaying the 

effective date of the H–1B Selection 

Final Rule beyond March 9, 2021, 

necessarily requires that USCIS apply 

the random selection regulations 

currently in place to the FY 2022 initial 

registration period. As discussed above, 

DHS aims to ensure an orderly and 

effective administration of the FY 2022 

H–1B numerical allocations. Because of 

this delay rule, the initial FY 2022 

registration period will be administered 

under the current regulations. DHS 

believes that it is best for the public that 

the same legal standard is also applied 

to all of the FY 2022 H–1B numerical 

allocations. If the H–1B Selection Final 

Rule were to take effect during the 

initial registration period, or any 

subsequent registration period during 

FY 2022, USCIS believes it would not be 

operationally able to administer the 

H–1B numerical allocations under two 

different regulatory standards. 

Therefore, DHS is delaying the 

effective date of the H–1B Selection 

Final Rule to December 31, 2021, to 

better ensure that the H–1B Selection 

Final Rule will not take effect while 

USCIS is still administering the FY 2022 

numerical allocation selection process. 

This delay and the application of the 

current regulations to the initial 

registration period for the FY 2022 

numerical allocations will provide DHS 

with more time to modify and test the 

changes to the H–1B registration system 

that will be needed to implement wagelevel-based selection, and to provide the 

regulated public with time to adapt to 

new procedures arising from the new 

legal requirements and system 

modifications. 

DHS is aware that some prospective 

petitioners and beneficiaries already 

may have changed their behavior in 

reliance on the H–1B Selection Final 

Rule. However, given the short amount 

of time that has passed since this rule 

was published on January 8, 2021, DHS 


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believes that any reliance is minimal 

and that such reliance interests do not 

outweigh the need for DHS to ensure 

that USCIS has sufficient time to 

implement the new regulations, and that 

the regulated public has enough time to 

adjust to the new registration selection 

process. 

Because it would be impracticable to 

provide for notice and comment and a 

delayed effective date in advance of the 

March 9, 2021, effective date, DHS is 

proceeding with this final rule. 

Accordingly, the effective date of the H– 

1B Selection Final Rule, FR Doc. 2021– 

00183, published on January 8, 2021, at 

86 FR 1676, is delayed to December 31, 

2021. 

B. Executive Order 12866, Regulatory 

Planning and Review, Executive Order 

13563 (Improving Regulation and 

Regulatory Review) 

Executive Orders (E.O.) 12866 and 

13563 direct agencies to assess the costs, 

benefits, and transfers of available 

alternatives, and if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits, 

including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and equity. 

E.O. 13563 emphasizes the importance 

of quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. Pursuant to 

Executive Order 12866 (Regulatory 

Planning and Review), the Office of 

Information and Regulatory Affairs 

(OIRA), of the Office of Management 

and Budget (OMB) determined that this 

rule is ‘‘economically significant’’ under 

E.O. 12866 and has reviewed this 

regulation. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 605(b), as amended by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

Public Law 104–121 (March 29, 1996), 

requires Federal agencies to consider 

the potential impact of regulations on 

small entities during the development of 

their rules. ‘‘Small entities’’ are small 

businesses, not-for-profit organizations 

that are not dominant in their fields, 

and governmental jurisdictions with 

populations of less than 50,000. A 

regulatory flexibility analysis is not 

required when a rule is exempt from 

notice and comment rulemaking. This 

final rule is exempt from notice and 

comment rulemaking, as stated in the 

Administrative Procedure Act, section 

of the preamble. 

D. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and tribal governments. 

Title II of UMRA requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed or final agency 

rule that may result in a $100 million or 

more expenditure (adjusted annually for 

inflation) in any one year by State, local, 

and tribal governments, in the aggregate, 

or by the private sector. The inflationadjusted value equivalent of $100 

million in 1995 adjusted for inflation to 

2019 levels by the Consumer Price 

Index for All Urban Consumers (CPI–U) 

is approximately $168 million based on 

the Consumer Price Index for All Urban 

Consumers. 

Because the H–1B Selection Final 

Rule that is being delayed by this final 

rule may result in the expenditure of 

more than $100 million by the private 

sector annually, OIRA has determined 

that this rule may as well. However, 

neither the H–1B Selection Final Rule 

nor this rulemaking is a ‘‘Federal 

mandate’’ as defined for UMRA 

purposes. The cost of preparation of 

H–1B petitions (including required 

evidence) and the payment of H–1B 

nonimmigrant petition fees by 

petitioners or other private sector 

entities is, to the extent it could be 

termed an enforceable duty, one that 

arises from participation in a voluntary 

Federal program, petitioning for 

classification of the beneficiary as an 

H–1B nonimmigrant. This final rule 

does not contain such a mandate. The 

requirements of Title II of UMRA, 

therefore, do not apply, and DHS has 

not prepared a statement under UMRA. 

Therefore, no actions were deemed 

necessary under the provisions of the 

UMRA. 

E. Congressional Review Act 

The Office of Information and 

Regulatory Affairs determined that the 

H–1B Selection final rule was a major 

rule as defined by 5 U.S.C. 804, also 

known as the ‘‘Congressional Review 

Act’’ (CRA), as enacted in section 251 of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

Public Law 104–121, 110 Stat. 847, 868– 

874, and codified at 5 U.S.C. 801–808. 

Therefore, OIRA has determined that 

this rule should have a ‘‘major’’ rule 

designation because its practical impact 

is that it is delaying the implementation 

of a major rule to FY 2023. The CRA 

requires that major rules have a 60-day 

delayed effective date. 5 U.S.C. 

801(a)(3). However, pursuant to 5 U.S.C. 

808(2), DHS is forgoing the 60-day 

delayed effective date for the reasons 

articulated in the Administrative 

Procedure Act section above. This final 

rule will take effect immediately upon 

publication. DHS has complied with the 

CRA’s reporting requirements and has 

sent this final rule to Congress and to 

the Comptroller General as required by 

5 U.S.C. 801(a)(1). 

F. Executive Order 13132 (Federalism) 

This final rule would not have 

substantial direct effects on the states, 

on the relationship between the 

National Government and the states, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, DHS has determined that 

this final rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

G. Executive Order 12988 (Civil Justice 

Reform) 

This final rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

H. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This final rule does not have ‘‘tribal 

implications’’ because it does not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

Accordingly, E.O. 13175, Consultation 

and Coordination with Indian Tribal 

Governments, requires no further 

agency action or analysis. 

I. National Environmental Policy Act 

(NEPA) 

DHS analyzes actions to determine 

whether the National Environmental 

Policy Act, Public Law 91–190, 42 

U.S.C. 4321 through 4347 (NEPA), 

applies to them and, if so, what degree 

of analysis is required. DHS Directive 

023–01 Rev. 01 (Directive) and 

Instruction Manual 023–01–001–01 Rev. 

01, Implementation of the National 

Environmental Policy Act (Instruction 

Manual) establish the policies and 

procedures that DHS and its 

components use to comply with NEPA 

and the Council on Environmental 

Quality (CEQ) regulations for 

implementing NEPA, 40 CFR parts 

1500–1508. 


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8548 Federal Register / Vol. 86, No. 24 / Monday, February 8, 2021 / Rules and Regulations 

9See 40 CFR 1507.3(b)(2)(ii), 1508.4. 

10 Instruction Manual section V.B(2)(a)–(c). 

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).9 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.10

As discussed in more detail 

throughout this final rule, DHS is 

issuing this final rule to delay the 

effective date and postpone the 

implementation of the H–1B Selection 

Final Rule. That rule is amending 

regulations governing the selection of 

registrations or petitions, as applicable, 

toward the annual H–1B numerical 

allocations based on the wage level that 

equals or exceeds the proffered wage 

based on occupational classification and 

area of intended employment. 

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, if 

not completely, speculative. The same 

applies to a rule delaying the effective 

date of such a rule that does not change 

the rule’s substance, but only postpones 

its effective date, and consequently 

pushes out the date on which it will be 

implemented. This final rule does not 

alter the statutory limitations on the 

numbers of nonimmigrants who may be 

issued initial H–1B visas or granted 

initial H–1B nonimmigrant status, or 

those who consequently will be 

admitted into the United States as H–1B 

nonimmigrants, or those who will be 

allowed to change their status to H–1B, 

or will extend their stay in H–1B status. 

DHS does not believe, and cannot 

reasonably estimate whether, the delay 

in a rule that establishes a wage-levelbased ranking approach to select H–1B 

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 H–1B petitions that 

ultimately will be approved, and the 

number of H–1B workers who will be 

employed in the United States in any 

FY. DHS has no reason to believe that 

delaying these amendments to H–1B 

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 A3(d) 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 only delays 

another final rule and will maintain the 

current human environment. 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. 

IV. Paperwork Reduction Act 

DHS is delaying the implementation 

of all changes to the H–1B Registration 

Tool (OMB Control number 1615–0144) 

and Form I–129, Petition for a 

Nonimmigrant Worker (Form I–129) 

(OMB Control number 1615–0009), 

associated with the H–1B Selection 

Final Rule until December 31, 2021. 

Alejandro N. Mayorkas, 

Secretary, U.S. Department of Homeland 

Security. 

[FR Doc. 2021–02665 Filed 2–4–21; 4:15 pm] 

BILLING CODE 9111–97–P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[Case Number 2020–020; EERE–2020–BT– 

WAV–0035] 

Energy Conservation Program: 

Notification of Petition for Waiver of 

Ningbo FOTILE Kitchen Ware Co. Ltd. 

From the Department of Energy 

Dishwashers Test Procedure and 

Notification of Grant of Interim Waiver 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notification of petition for 

waiver and grant of an interim waiver; 

request for comments. 

SUMMARY: This notification announces 

receipt of and publishes a petition for 

waiver and interim waiver from Ningbo 

FOTILE Kitchen Ware Co. Ltd. 

(‘‘FOTILE’’), which seeks a waiver for 

specified dishwasher basic models from 

the U.S. Department of Energy (‘‘DOE’’) 

test procedure used for determining the 

energy and water consumption of 

dishwashers. DOE also gives 

notification of an Interim Waiver Order 

that requires FOTILE to test and rate the 

specified dishwasher basic models in 

accordance with the alternate test 

procedure set forth in the Interim 

Waiver Order. DOE solicits comments, 

data, and information concerning 

FOTILE’s petition and its suggested 

alternate test procedure so as to inform 

DOE’s final decision on FOTILE’s 

waiver request. 

DATES: The Interim Waiver Order is 

effective on February 8, 2021. Written 

comments and information are 

requested and will be accepted on or 

before March 10, 2021. 

ADDRESSES: Interested persons are 

encouraged to submit comments using 

the Federal eRulemaking Portal at 

http://www.regulations.gov. 

Alternatively, interested persons may 

submit comments, identified by case 

number ‘‘2020–020’’, and Docket 

number ‘‘EERE–2020–BT–WAV–0035,’’ 

by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: 

FotileDishwasher2020WAV0035@

ee.doe.gov. Include Case No. 2020–020 

in the subject line of the message. 

• Postal Mail: Appliance and 

Equipment Standards Program, U.S. 

Department of Energy, Office of Energy 

Efficiency and Renewable Energy, 

Building Technologies Office, Mailstop 

EE–5B, Petition for Waiver Case No. 

2020–020, 1000 Independence Avenue 

SW, Washington, DC 20585–0121. If 

possible, please submit all items on a 

compact disc (‘‘CD’’), in which case it is 

not necessary to include printed copies. 

• Hand Delivery/Courier: Appliance 

and Equipment Standards Program, U.S. 

Department of Energy, Building 

Technologies Office, 950 L’Enfant Plaza 

SW, 6th Floor, Washington, DC 20024. 

Telephone: (202) 287–1445. If possible, 

please submit all items on a CD, in 

which case it is not necessary to include 

printed copies. 

No telefacsimilies (‘‘faxes’’) will be 

accepted. For detailed instructions on 

submitting comments and additional 

information on this process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: The docket, which includes 

Federal Register notices, comments, 


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