Washington Update

APLU Congratulates President-Elect Biden and Vice President-Elect Harris
APLU released a comprehensive statement congratulating President-elect Biden and Vice President-elect Kamala Harris on their victory while outlining important shared policy priorities with public research universities. First, APLU stresses the need for Congress to pass a comprehensive Phase IV COVID-19 relief package with substantial support for higher education and research. Additional priorities highlighted are college affordability, including strong support for doubling the maximum Pell Grant and a federal-state partnership, prioritizing and boosting scientific research, passing legislation to protect Dreamers, and enhancing immigration policies that attract and retain international students.

APLU Presses Lawmakers on COVID Relief Package; Senate Appropriations Committee Releases FY2021 Spending Bills
APLU continues to press lawmakers on the urgency of passing a robust COVID relief package. On November 4, Senate Majority Leader Mitch McConnell (R-KY) said he wants to pass a Phase IV COVID-19 relief bill before the end of the year. Leader McConnell continues to advocate for a “skinny” relief package. Following release of the October jobs report, Leader McConnell told reporters the numbers reinforce the “argument that I’ve been making for the last few months, that something smaller – rather than throwing another $3 trillion at this issue – is more appropriate.” While House Speaker Nancy Pelosi (D-CA) has expressed interest in passing a relief bill in the lame duck session, she has repeatedly rejected McConnell’s approach, telling reporters a “skinny” package “doesn’t appeal to me at all.”

Additionally, Leader McConnell and Speaker Pelosi intend to complete FY2021 appropriations during the lame duck session. Last week, Senate Appropriations Committee Chairman Richard Shelby (R-AL) released bill text, report language, and summaries for all 12 FY 2021 spending bills. Chairman Shelby said he hopes release of the bills will advance the appropriations process and produce bipartisan results before the continuing resolution currently funding the government ends on December 11.

APLU’s Office of Governmental Affairs developed detailed analyses of the Senate bills, which includes funding levels and policy provisions of interest to APLU institutions. The APLU FY 2021 appropriations priorities chart has been updated to reflect Senate action.

Associations Submit Comments Expressing Concerns with DOL Wage IFR
APLU joined the College and University Professional Association for Human Resources (CUPA-HR) and others on a letter expressing concerns with the Department of Labor (DOL)’s interim final rule (IFR) on “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” Effective the day it was published, October 8, 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.”

Per the letter, the associations are concerned the IFR was promulgated without opportunity for public comment. The associations are also critical of the Department’s decision to rely on fundamentally unsound methodology to justify the IFR as well as the lack of adequate time offered to adjust to changes, which negatively impacts higher education by in effect precluding colleges and universities from hiring international employees to fill many essential positions.

APLU also joined a comment letter led by Compete America, of which APLU is a member, opposing the IFR. The letter asks DOL to rescind the IFR because the “IFR’s faulty justification and policy choices create regulatory framework that aggressively obstructs the national benefits in innovation and economic activity.” The letter also notes that DOL did not follow the Administrative Procedures Act (APA) by issuing the rule as an interim final rule and thus bypassing the notice and comment process required under APA.

The IFR is currently being challenged in court by the U.S. Chamber of Commerce, several higher education institutions, and other industry partners. APLU has joined two amicus briefs (see here and here) supporting plaintiffs’ arguments against DOL.

For additional information on the impact of the IFR, the American Action Forum (a center-right economic and fiscal policy think tank) released a report detailing the significant harm of the rule to the ability of employers to hire and retain international talent.

Higher Ed Community Urges DHS to Withdraw H-1B IFR
On November 9, APLU and partner higher education associations and organizations sent a letter to the Department of Homeland Security (DHS) expressing concerns and urging withdrawal of the agency’s IFR on “Strengthening the H-1B Nonimmigrant Visa Classification Program.” Effective December 7, the rule 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. Additionally, the proposed regulations would redefine the “employer-employee relationship” to consider whether an H-1B visa holder will work offsite, limit the validity of H-1B visas to one year if the petitioner will work at a third-party site, and require petitioners who will be placed at third-party worksites to submit contracts, work orders, and other evidence they will perform services in a specialty occupation at the third-party worksite.

The letter argues the importance of the H-1B visa program to universities as employers and outlines how changes to the definition of specialty occupation would negatively impact colleges and universities, noting the changes “will impact our ability attract a broad group of candidates for a faculty position in many important fields.” Further, the letter requests DHS clarify that clinical faculty, residents, and fellows placed at teaching hospitals, as well as researchers collaborating with colleagues on research projects will be excluded from the one year limitation DHS plans to impose on H-1B workers at third-party worksites.

The associations also voice concerns with the administration’s decision to bypass the rulemaking process when publishing the IFR while noting the “harm from this IFR will be felt by students, hospital patients, researchers, and faculty and it will hurt the critical work of U.S. colleges and universities.”

The IFR is currently being challenged in court.

ED Publishes Section 117 NOI
On November 13, the Department of Education (ED) published a Notice of Interpretation (NOI), with a 30-day comment period, on Section 117 titled “The Department’s Enforcement Authority for Failure to Adequately Report Under Section 117 of the Higher Education Act of 1965.” Effective the date of publication, the NOI ties Section 117 compliance failures to colleges’ eligibility to participate in the Title IV student financial aid programs. The NOI also states the Department of Education has subpoena authority in Section 117 investigations because it has that authority under Title IV of the Higher Education Act (HEA).

APLU is working with partner associations to submit comments opposing the NOI. Comments are due December 14, 2020.

The NOI follows release of the Department’s Section 117 compliance report last month, which was very critical of U.S. universities’ relationships with foreign entities.

Federal Judge Invalidates DHS Memo Reducing DACA Benefits
On Saturday, Judge Nicholas Garaufis of the U.S. District Court of the Eastern District of New York invalidated a July 28 memo, issued by Department of Homeland Security (DHS) Acting Secretary Chad Wolf, significantly reducing DACA benefits. The memo directed the agency to reject new DACA applications, decline new and pending requests for advanced parole absent exceptional circumstances, and to process renewals for only one year instead of two years.

In his ruling, Judge Garaufis said Wolf was not lawfully serving as acting secretary of DHS when he issued the memo, rendering the memo invalid. He wrote, “DHS failed to follow the order of succession as it was lawfully designated…Therefore, the actions taken by purported Acting Secretaries, who were not properly in their roles according to the lawful order of succession, were taken without legal authority.” The effect of the ruling is not yet clear because the judge did not ask DHS to fully restore the DACA program.

President Trump tapped Wolf to serve as acting secretary of DHS in November 2019. The president formally nominated him to be secretary this past August. Despite a confirmation hearing in September, Wolf has yet to be confirmed by the Senate to serve as secretary of DHS.

State Department and IIE Release 2020 Open Doors Report
The State Department’s Bureau of Educational and Cultural Affairs (ECA) and the Institute of International Education (IIE) released the 2020 Open Doors Report on International Educational Exchange. Although the number of international students hosted by the United States remains above 1 million (1,075,496), including Optional Practical Training (OPT) participants, for a fifth consecutive year, the overall number of international students decreased by 1.8 percent and new enrollment declined by 0.6 percent during the 2019-2020 academic year. According to the report, international students still represent 5.5 percent of all students in higher education and contributed $44 billion to the U.S. economy in 2019.

During the 2019-2020 academic year, 52 percent of international students pursued majors in STEM fields and the number of international students enrolled in OPT increased slightly to 223,539 from 223,085. Additionally, China continues to be the largest source of international students, accounting for 34.6 percent of the total number of international students in the United States.

ECA and IIE also provided a Fall 2020 Snapshot Report, based on data from over 700 U.S. higher education institutions, which captures the impact of the COVID-19 pandemic on international student enrollment. Of particular interest, the total number of international students studying at U.S. institutions and online outside of the U.S. decreased by 16 percent. New enrollment, including those engaging in remote learning outside of the U.S., decreased by 43 percent. Additionally, the report finds that nearly 40,000 students have deferred enrollment to a future term.

For a comprehensive overview of the 2020 Opens Doors Report, visit here.