Trump Administration Releases Spring 2018 Regulatory Agenda

On May 9, the Trump Administration released its Unified Regulatory Agenda and Regulatory Plan, providing the regulated public with a detailed glimpse into the regulatory policies and priorities under consideration by 59 federal departments, agencies and commissions. Agendas are released twice a year, generally in the spring and fall, and are designed to provide the public with information on regulations the federal government is currently considering and to prioritize action items for the coming year.

The Spring 2018 Agenda sets target dates for each agency and sub-agency’s regulatory actions, from the beginning to the end of the regulatory process, and provides insight into which issues will be a short-term focus for the agency. It also includes long-term action items to allow relevant parties to begin considering the impact these regulations may have. Although the Agenda reports on thousands of rules and regulations, below are some of the more important issues that CUPA-HR has been following:

Department of Labor

Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees 
The Department of Labor (DOL)’s Wage and Hour Division (WHD) has postponed the target release date from later this year to January 2019 for a new Notice of Proposed Rulemaking (NPRM) on overtime requirements under the Fair Labor Standards Act (FLSA). DOL states that it will use the responses it received to their 2017 Request for Information (RFI) on the invalidated Obama administration’s overtime rule to develop the NPRM. The RFI sought comment on whether the Obama rulemaking went too far in its efforts to expand overtime pay to more workers.

On September 25, 2017, CUPA-HR, joined by 20 other higher education associations, filed substantive comments in response to the RFI, highlighting higher education’s belief that an increase to the salary threshold is due and that DOL has an obligation to update the threshold from time to time to ensure the exemptions are not abused and outlining what we believe to be DOL’s best course of action moving forward. It is not clear what the new proposed salary level will be or whether the rule will contain other elements beyond updating the threshold; however, comments made by Secretary of Labor Alexander Acosta suggest that the NPRM will include a smaller salary level than the 2016 rule.

Regular Rate Under the Fair Labor Standards Act
Additionally, WHD included an NPRM targeted for September 2018 to address how regular rates of pay are calculated when determining overtime pay. The Department is considering amending the implementing regulations of the FLSA to clarify and update those requirements.

National Labor Relations Board 

Notice Regarding Possible Reconsideration of Representation Case Procedures
The National Labor Relations Board (NLRB) included a notice in the agenda that deals with the 2014 Obama-era rulemaking that altered the procedures for holding a union representation election. Under the rulemaking, the procedures were altered in a manner to help speed up the time frame between the filing of a petition for an election and the holding of that election. The NLRB issued an RFI on the 2014 rulemaking, seeking public input on the effect the rulemaking had and if the rulemaking should be altered or eliminated entirely. The Spring agenda targets June 2018 for the DOL to finish its review of the responses it received on the RFI.

Joint-Employer Rulemaking
The NLRB has listed under “long-term” actions that they are considering engaging in rulemaking to establish the standard for determining joint-employer status under the National Labor Relations Act. Items listed under long-term actions are issues which are under development at the respective agency but are not scheduled for regulatory action within the 12 months following publication of that edition of the regulatory agenda. While it is unclear what any future rule may include, NLRB Chairman John Ring issued a statement in which he said that “the current uncertainty over the standard to be applied in determining joint-employer status under the Act undermines employers’ willingness to create jobs and expand business opportunities” and that “notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be.”

Department of Homeland Security

Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations
U.S. Citizenship and Immigration Services (USCIS) plans to issue a Notice of Proposed Rulemaking (NPRM) in July 2018 (this proposal was initially slated to be issued in February 2018) to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. USCIS claims that this regulation is necessary to increase efficiency in allocating cap-subject H-1B visas, as the demand for H-1B specialty occupation workers by U.S. companies has often exceeded the numerical limitation. The agenda also states that the proposal may include a modified selection process, as outlined in section 5(b) of Executive Order 13788, Buy American and Hire American.

Strengthening the H-1B Nonimmigrant Visa Classification Program
USCIS plans to issue an NPRM in January 2019 (this proposal was initially slated to be issued in October 2018) to revise the definition of “specialty occupation” and revise the definition of “employment” and “employer-employee relationship.” The agenda states that the Department of Homeland Security’s purpose for proposing these changes is to “increase focus on obtaining the best and the brightest foreign nationals via the H-1B program,” to “better protect U.S. workers and wages,” and to “ensure employers pay appropriate wages to H-1B visa holders.”

Removing H-4 Dependent Spouses From the Class of Aliens Eligible for Employment Authorization
USCIS plans to issue a Notice of Proposed Rulemaking (NPRM) in June 2018 (this proposal was initially slated to be issued in February 2018) to terminate the employment authorization program for certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization in the U.S. On May 23, in a filing with the U.S. Court of Appeals for the District of Columbia Circuit, which is hearing an appeal in the case of Save Jobs USA v. DHS, DHS notified the court that the NPRM is in the final stages of clearance before being sent to the Office of Management and Budget for review.

Practical Training Reform 
U.S. Immigration and Customs Enforcement (ICE) will issue a Notice of Proposed Rulemaking (NPRM) to comprehensively revise practical training rules for F and M foreign students. The regulatory agenda states that the rule is intended to reduce fraud and abuse within the Optional Practical Training (OPT) program and “improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas.” The anticipated publication date remains October 2018.

Currently, the OPT program permits foreign nationals who graduated from a U.S. university the ability to apply to receive up to 12 months of OPT employment authorization before completing their academic studies and/or after completing their academic studies. In March 2016, the Obama administration issued a final rule that extended OPT work authorization in STEM fields (STEM OPT) for an additional 24 months (36 months total) post-graduation and expanded vetting requirements to include a formal training plan that specifies learning objectives.

While we will not know the specific reforms DHS intends to propose until the NPRM is issued, rhetoric from the administration and certain leaders on Capitol Hill labeling some universities as “visa mills” has many in the higher ed community worried that potential reforms could seek to eliminate the STEM extension, shorten the work authorization period, or make the reporting requirements so onerous the program is virtually impossible to use.