Washington Update

Phase IV COVID-19 Relief Update
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. Prospects for passage of a pre-election deal have faded, but House Speaker Nancy Pelosi and Treasury Secretary Mnuchin continue negotiations on Phase IV coronavirus relief.

Higher Ed Organizations Submit Comments on Duration of Status NPRM
APLU and partner higher education organizations submitted comments to the Department of Homeland Security (DHS) opposing the agency’s Notice of Proposed Rulemaking (NPRM) on “Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media,” commonly known as the duration of status rule. APLU President McPherson also penned an op-ed outlining the negative impacts such a rule would have on U.S. competitiveness.

The comments express significant concerns with the proposed regulations, including but not limited to an unworkable two-to-four-year maximum duration of status policy for F students and J scholars; two-year restrictions for broad groups of international students and scholars from countries classified as state sponsors of terrorism or countries with a 10 percent overstay rate; financial and complicated burdens for students and scholars due to the proposed extension policy; impacts on students seeking Optional Practical Training and scholars transitioning to H-1B visas; additional processing times and backlog at USCIS; impacts on the U.S. economy and global competitiveness; and other substantial concerns.

The comments request the Department withdraw the proposed regulations and “ask that DHS work with institutions of higher education to address the issues of fraud and abuse raised in the proposed rule, and look to address these issues, to the extent they are shown to exist, using the long-established SEVIS database system.”

Additionally, Compete America, of which APLU is a member, also submitted comments on the NPRM urging the administration to withdraw the proposed regulations. The comments detail the harmful impacts the proposed rule would have on our national academic, job creation, and economic interests. The U.S. Chamber of Commerce also sent comments outlining the potential impacts on the business community and requests withdrawal of the NPRM.

In related news, Representative Jaime Herrera Beutler (R-WA) sent a letter, signed by 20 House Republicans, to the Department expressing concerns with the proposed rule. APLU worked with Washington State University and the University of Washington to help initiate the effort.

Higher Ed Institutions Join Lawsuits Challenging DOL and DHS IFRs
Several institutions of higher education joined a pair of lawsuits challenging the Department of Homeland Security (DHS)’s Strengthening the H–1B Nonimmigrant Visa Classification Program interim final rule (IFR) and the Department of Labor (DOL)’s Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States IFR, both published on October 8.

The U.S. Chamber of Commerce led a coalition of business and higher education plaintiffs on a lawsuit filed with the U.S. District Court for the Northern District of California challenging both IFRs. The plaintiffs argue the “rules were promulgated as final rules without following the notice-and-comment requirements of rulemaking under the Administrative Procedure Act, and also exceed the agencies’ statutory authority and are arbitrary and capricious.”

In a separate lawsuit, 17 individual and organizational plaintiffs represented by the American Immigration Lawyers Association (AILA), filed a complaint against just the DOL wage rule. The case was filed with the U.S. District Court for the District of Columbia.
Effective the date of publication, October 8, the DOL wage rule would significantly raise wage requirements for higher-skilled workers on H-1Bs in ways that are not consistent with levels of many professionals. 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.” Comments on the IFR are due on November 9.

The DHS H-1B IFR would narrowly define “specialty occupation” for H-1B visa holders, require foreign workers to have a degree in the specialty occupation instead of simply obtaining a college degree in any field, and necessitate some potential employees to justify how their degree has provided “a body of highly specialized knowledge for a potential job in the United States.” The IFR is effective December 7, the last day to submit comments.

APLU and AAU Submit Comments on Copyright Sovereign Immunity Study
APLU and the Association of American Universities (AAU) submitted new comments in response to the U.S. Copyright Office’s Notice of Inquiry regarding a policy study on state sovereign immunity from copyright infringement suits. On September 2, the two associations submitted comments in response to the U.S. Copyright Office’s request for public comment in anticipation of its forthcoming study on the extent to which copyright owners are experiencing infringement by states without adequate remedies. The Copyright Office is undertaking this study at the request of Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) following the Supreme Court’s decision 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).

The associations assert that Congress should preserve state sovereign immunity for copyright claims. As the letter states, “State universities have shown that they are willing to accept the obligation of copyright law and continually work to ensure compliance… Further, from a practical standpoint, abrogating sovereign immunity would simply embolden plaintiffs – particularly those with weak or unsupported claims – to engage in rent-seeking in a way that would not advance the aims of copyright law while diminishing state universities’ ability to fulfill their public missions, which include spending billions of dollars on copyrighted works each year.”