Washington Update

DOL Releases Final Wage Rule
The Department of Labor (DOL) announced the final wage rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, aimed at curtailing employment-based visa programs, including H-1Bs. The rule, initially published as an interim final rule (IFR) on October 8, will require U.S. employers to “pay nonimmigrant workers, during the period of authorized employment, the higher of the prevailing wage or the actual wage paid to other employees with similar experience and qualifications.”

Last month, a pair of federal judges, in separate lawsuits, ruled last month that the Trump administration violated the Administrative Procedures Act by bypassing the notice and comment process when it issued the rule as an interim final rule. To cure the defects of its rulemaking process, DOL considered comments submitted when the rule was published as an IFR and has now issued the final rule. A phased-in approach to implementation and slightly decreased prevailing wage levels compared to the levels included in the IFR are substantive changes in the final rule.

The rule is effective 60 days after publication in the Federal Register. APLU has asked the incoming administration to repeal the rule and is working with our association and industry partners on next steps. Undoubtedly, litigation will be considered

DHS Publishes Final Rule Reforming H-1B Lottery System
Last week, the Department of Homeland Security (DHS) announced the final rule regarding “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions.” The rule replaces the lottery H-1B selection process and prioritizes selecting applicants based on high corresponding prevailing wage levels.

Effective March 9, the rule is only applicable to cap-subject petitions which by definition does not include public universities as employers. However, the rule is likely to negatively impact recent international student graduates who are unable to qualify for the highest-paying jobs, which could lead to decreased international student enrollment and the United States’ ability to attract and retain top foreign talent.

APLU and partner organizations previously requested to the Biden Transition Team that the incoming administration repeal the rule if promulgated.

White House Extends Proclamation on Nonimmigrant Visas Through March
The White House issued a memorandum extending Proclamations 10014 and 10052, which limit immigration into the United States due to the COVID-19 pandemic, through March 31, 2021. The proclamations are applicable to green card applicants and the issuance of new visas for certain categories of nonimmigrant programs, including H-1B visas. Last year, APLU released a statement expressing concerns with the administration’s decision to suspend nonimmigrant visas essential to our national economy.

APLU Submits Comments on USPTO State Sovereign Immunity Study
On December 21, APLU submitted comments in response to the U.S. Patent and Trademark Office (USPTO)’s Request for Information regarding a policy study on “the extent to which patent or trademark rights holders are experiencing infringement by state entities without adequate remedies under state law, and the extent to which such infringements appear to be based on intentional or reckless conduct.” APLU’s comments defend state sovereign immunity while detailing the value to society of public university technology transfer.

USPTO is undertaking this study at the request of Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) following the Supreme Court’s 1999 decision in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank upholding state sovereign immunity in patent litigation and more recently in Allen v. Cooper (2020), which held that Congress did not validly abrogate state sovereign immunity via the Copyright Remedy Clarification Act (see APLU and AAU’s amicus brief here).

APLU and the Association of American Universities (AAU) previously submitted comments (September 2 and October 22) to the U.S. Copyright Office in response to a similar inquiry.