Washington Update

Phase IV COVID-19 Relief Update
The administration and senior congressional leaders continue to release ever-changing information on a possible Phase IV COVID-19 relief package. House Speaker Nancy Pelosi and Treasury Secretary Steve Mnuchin spoke today and are expected to speak tomorrow as well. APLU continues to engage Congress on our Phase IV priorities, including at least $120 billion to support students and institutions of higher education and $26 billion for research relief.

Associations Urge White House to Rescind EO on Race and Sex Stereotyping
Last Thursday, the higher education community sent a letter to President Trump requesting withdrawal of Executive Order (EO) 13950, “Combating Race and Sex Stereotyping.” The EO aims to limit sexual harassment, diversity and inclusion, and other Equal Employment Opportunity trainings and programs the administration considers “offensive and anti-American race and sex stereotyping and scapegoating.” The EO also outlines distinct processes by which restrictions could apply to recipients of new federal contracts and grants.

The higher education community letter notes “We strongly oppose race and sex stereotyping, which inhibits efforts to build more inclusive workplaces and communities. But the timing, content, and discordant tone of your Executive Order is creating concern, confusion, and uncertainty for federal contractors and grant recipients across the country.” Additionally, the letter defends the importance of workplace diversity and inclusion training programs and identifies conflict between this EO and administration priorities in reducing regulatory burden and fostering free inquiry on college campuses.

Last week, Craig Leen, head of the Labor Department’s Office of Federal Contract Compliance Programs, defended the EO, stating unconscious bias training is “perfectly fine as long as it teaches that everyone, based on the human condition, has unconscious biases, and doesn’t specifically call out a particular race or sex as being inherently biased.” The Department also recently posted FAQs on the EO.

The State University of New York and law firms Hogan Lovells and Wilmer Hale have developed more comprehensive summaries.

Administration Publishes Interim Final Rules to Curtail H-1B Visa Program
Last week, the Department of Homeland Security (DHS) and the Department of Labor (DOL) released a pair of Interim Final Rules (IFRs), with requests for comments, aimed at curtailing the H-1B visa program for foreign workers and U.S. employers.

On October 8, DHS published an IFR on “Strengthening the H–1B Nonimmigrant Visa Classification Program.” The IFR would narrowly define “specialty occupation” for H-1B visa holders and require foreign workers to have a degree in the specialty occupation instead of simply obtaining a college degree in any field. The rule would also require some potential employees to justify how their degree has provided “a body of highly specialized knowledge for a potential job in the United States.” Per the New York Times, Acting DHS Deputy Secretary Ken Cuccinelli stated the rule is expected to reduce the number of annual H-1B petitions by one-third. The IFR does not change the cap exemptions for university employers but the modifications to the definition of specialty occupation could pose challenges for institutions of higher education. The IFR is effective December 7, 2020, the last day to submit comments.

The same day DHS published the H-1B IFR, DOL published an IFR on wage protections titled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” Effective October 8, the day of publication, the rule is of significant concern to APLU and has serious repercussions for colleges and universities. Of particular concern, the rule would significantly raise wage requirements for higher-skilled workers on H-1Bs in ways that are not consistent with levels of the profession. Employers, including colleges and universities, would have to “pay entry-level workers in the program in the 45th percentile of their profession’s salary rather than the 17th percentile. Wages for higher-skilled workers would rise to the 95th percentile from the 67th percentile.” DOL’s FAQs regarding implementation of the rule is available here. The deadline to submit comments on the IFR is November 9, 2020.

Jon Baselice, Executive Director of Immigration Policy at the U.S. Chamber of Commerce, told reporters the rules have the potential to “inflict serious harm upon many American companies.” The administration concedes the rules will “likely result in higher personnel costs for some employers,” but contends “the purpose of protecting U.S. workers outweighs such interests and justifies such increased costs.”

APLU is working with higher education partners to submit comments conveying the harmful implications of the IFRs to public institutions. Litigation that would challenge the administration’s authority to execute these rules under an “interim final rule” basis is possible.

Federal Judges Block USCIS Fee Rule and White House Ban on Foreign Workers
On September 29, a federal judge granted a motion for a preliminary injunction against the U.S. Citizenship and Immigration Services (USCIS) final fee rule, which was set to go into effect on October 2. The American Immigration Lawyers Association filed a complaint in August challenging the rule, which would have adjusted fees for certain immigration and naturalization benefit requests, including H-1B petitions ($460 to $555) and applications for employment authorization for students on OPT ($410 to $550). The agency released a statement calling the ruling “unprecedented and harmful to the American people.”

Furthermore, on October 1, a federal judge in California delivered a ruling partially blocking the administration’s proclamation, Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak, issued in June. The proclamation, which argues restrictions on nonimmigrant visas will help restore the American economy, suspended the issuance of new visas for certain categories of nonimmigrant programs, including H-1B visas, through December 31, 2020.

In his ruling, the judge said the president did not have “unbridled authority to set domestic policy regarding employment of nonimmigrant foreigners” and the “proclamation completely disregards both economic reality and the pre-existing statutory framework…Furthermore, without any consideration of the impact on American firms and their business planning, the proclamation changes the scope of immigration policy in the United States.”

Congress Reaches a Deal on and President Trump Signs CR Extending Government Funding to Dec. 11
On October 1, President Trump signed Public Law No: 116-159, the Continuing Appropriations Act, 2021 and Other Extensions Act to extend current government funding levels until December 11, 2020. The measure passed the Senate on an 84-10 vote and the House on a 359-57 vote.

In addition to extending government funding, the measure includes other extenders and policy of interest to APLU institutions. The bill includes an extension of emergency Department of Veterans Affairs (VA) flexibilities for student veterans whose education is disrupted because of the pandemic, including an extension of special authority to the VA to continue paying GI Bill education benefits if a school closes or ceases all in-person instruction for another year; funding for the 2020 census; and extends the availability of funding for the National Institutes of Health multiyear research grants.