Washington Update

Government Funding Update
New House Speaker Mike Johnson (R-LA) is aiming to pass the House’s remaining Fiscal Year (FY) 2024 appropriations bills by November 17, the current funding deadline. He has stated support for a continuing resolution until mid-January to allow time for negotiations with the Senate. Meanwhile, Senate appropriators may favor a continuing resolution until early-/mid-December.  

Under the Fiscal Responsibility Act, the budget deal struck by President Biden and then-Speaker McCarthy, a 1 percent across-the-board cut to federal spending would automatically be imposed if the federal government is operating under a continuing resolution in January. A chart detailing the most recent funding levels for APLU priority accounts can be found here.

House Action
Last week, the House passed the Energy and Water appropriations bill on a party-line vote. The bill includes $8.1 billion for the Department of Energy Office of Science and $470 million for the Advanced Research Projects Agency – Energy (ARPA-E). The House is slated to consider the Legislative Branch, Interior, and Transportation-HUD appropriations bills this week pursuant to a rule. The House plans to consider Commerce-Justice-Science and Labor-HHS-ED appropriations the week of November 13. The chart linked above indicates APLU priorities within these bills.

Senate Action
The Senate continues floor consideration of a three-bill appropriations package – including the Agriculture, Military-Construction-VA, and Transportation-HUD bills this week. The Senate previously approved an en bloc package of bipartisan amendments via voice vote, including an amendment to the Ag appropriations bill, #1113, by Senators Mazie Hirono (D-HI) and Jerry Moran (R-KS) providing $2 million for the Research Facilities Act. Ag research infrastructure funding has been a significant priority for APLU and member institutions.

White House Issues Executive Order on Artificial Intelligence
President Biden issued an executive order on Monday that sets standards for artificial intelligence (AI) safety and security, promotes innovation and competition, and seeks to advance American leadership. Per the White House, the executive order also includes directives aimed at protecting privacy, advancing equity and civil rights, and standing up for consumers and workers. A White House fact sheet on the order can be found here.

Notably, the order details actions agencies across the government will take to develop standards, tools, and tests to help ensure AI systems are safe, secure, and trustworthy and directs the development of a National Security Memorandum on AI. The order calls on Congress to pass bipartisan data privacy legislation and uses existing authority to expand the ability of high skilled immigrants to stay and work in the U.S. Full text of the Executive Order is available here.

Senate HELP Committee Advances Nomination of Monica Bertagnolli for NIH Director
Last week, the Senate Health, Education, Labor and Pensions Committee advanced the nomination of Monica Bertagnolli to lead the National Institutes of Health. The timing of a potential for a confirmation before the full Senate is not yet clear. APLU supports the nomination of Dr. Bertagnolli.

DHS Publishes H-1B Modernization NPRM
The Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking to modernize and improve regulations for the H-1B program. Comments are due December 22. In the NPRM, DHS notes the final rules may be issued in several sets.

As part of the requirements to obtain an H-1B visa, a job must be considered a “specialty occupation” and petitioners must demonstrate they have academic credentials consistent with the field of employment. The regulations proposed by DHS further refine “specialty occupation” to show there must be a direct relationship between the required degree fields and the job duties, noting that there may be more than one acceptable degree field for a position. The proposal provides a position is not a specialty occupation if a general degree without further specialization is sufficient to apply for the position. Conversely, the rule clarifies that a minimum entry requirement of a bachelor’s degree in various fields would not automatically disqualify a position from being a specialty position, as long as each degree is specialized. The proposed rule codifies USCIS practice that the burden of proof is on the petitioner to demonstrate the degree relates to the position.

DHS also proposes to revise the definitions of “nonprofit research organization” and “governmental research organization” for the purpose of H-1B cap exemptions. DHS states the change will modernize eligibility for cap-exempt H-1B employment and better reflect modern employment relationships. Institutions of higher education, non-profit entities related to or affiliated with an IHE remain exempt from the H-1B cap as employers.

ED Releases Final Rules on Financial Responsibility, Certification Procedures, Administrative Capability, and Ability to Benefit 
The U.S. Department of Education (ED) released a pre-publication final rule and related factsheet on financial responsibility, administrative capability, certification procedures, and ability to benefit. These topics were included in a May NPRM along with financial value transparency and gainful employment, which were issued in a separate rule last month. Both sets of rules go into effect on July 1, 2024.

Earlier this summer, APLU submitted several comments in response to the NPRM, including our own comments and a community response. A brief summary of the regulations with a focus on concerns identified in these comments follows.

Financial Responsibility
In order to maintain public institution exemptions from financial responsibility regulations, the NPRM would have newly required publics to secure letters from states attesting to full faith and credit backing. APLU spearheaded a letter joined by the American Association of Community Colleges, American Association of State Colleges and Universities, and the State Higher Education Executive Officers Association expressing concerns that acquiring letters from their state attesting their full faith and credit backing would be unnecessary, burdensome to states and institutions, and could exacerbate challenging dynamics between states and public colleges and universities. ED heeded the advice and in the final regulation limited the application of the mandatory requirement only in cases of a conversion or newly formed public institution, while maintaining authority to request letters in individual circumstances.

Certification Procedures
The rules add conditions to the program participation agreements institutions agree to when certifying their eligibility for Title IV aid. Of note, the rules prohibit institutions from withholding transcripts for terms paid for using Title IV aid and for which the student has no outstanding balances.

Under the regulation, distance education providers are required to comply with state laws relating to closure, such as teach-outs, record retention, tuition recovery funds, and surety bonds, in every state they serve students. However, the final rule removes regulations proposed in the NPRM that would have covered state laws relating to misrepresentation and recruitment, noting these issues are covered by generally applicable laws on unfair and deceptive acts.

Administrative Capability
The final rule requires institutions to provide adequate and financial aid communications to students, including information on cost of attendance, the sources of aid, whether the aid must be repaid or not, and deadlines to accept the offered aid. The rule also requires institutions to provide adequate career counseling. The regulation offers institutions flexibility to consider a range of career counseling options based on program and institutional characteristics, though it does not require ratios of counselors to students. Under the rule, institutions are required to provide geographically accessible clinical or externship opportunities required for the completion of the credential or licensure within 45 days of completion of required coursework. Medical residencies are excluded.

Ability to Benefit (ATB): The Higher Education Act establishes three “ability to benefit” alternatives a student without a high school diploma may pursue to access Federal financial aid, including participating in a state process approved by the U.S. Department of Education. ATB students are required to enroll in an eligible career pathway program to access Federal student aid. Because the proposed rule was consensus language reached during the Spring 2022 negotiated rulemaking session, APLU did not submit comment on this component of the rule.