Recent Regulatory Developments

October 27, 2020
Office of Legal Affairs
Recent Regulatory Developments


With the upcoming election (and possible change in Administration) rapidly approaching, some federal agencies have recently issued regulatory changes or clarifications.  A couple of these agency actions are worth noting, due to their direct impact on higher education, and their potential for contentious litigation.

On October 8, the Department of Labor (DOL) published an interim final rule titled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” Bypassing the more typical rule-making process, the DOL’s interim final rule changes the prevailing wage rates used to justify H-1B, E-3 and PERM filings in connection with certain foreign worker programs.

The DOL stated that the rule will improve the accuracy of prevailing wages paid to foreign workers by bringing them in line with salaries earned by similarly situated US workers, and that the changes will thus protect the job and wage opportunities of the latter.  Others are taking a different view, believing the rule will not only limit the ability to obtain such visas, but also impose substantial premiums on organizations who want to hire specialty foreign workers, including postdocs and researchers.

The next day, on October 9, the Department of Education (DOE) introduced significant changes to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act) – a law that requires colleges and universities that participate in federal financial aid programs to keep and disclose information about crime on or near their respective campuses.  The DOE rescinded The Handbook for Campus Safety and Security Reporting (2016 Edition), and replaced it with a much shorter Clery Act Appendix to the Federal Student Aid Handbook, which will be effective starting with the reporting to be included in next year’s Annual Security Report (ASR). 

The DOE explained that the changes are meant to address what they now considered overreaching and unnecessarily voluminous regulatory guidance, and are consistent with the goals of Executive Order 13891 concerning how federal agencies issue guidance documents and the transparency of the regulation-making process. The Appendix emphasizes the plain meaning of terms in the statutory and regulatory requirements, and, where those are not defined in the statute or regulations, it gives institutions discretion in interpreting the same, with far-reaching implications for fundamental concepts like Clery Geography, Clery Crimes and Campus Security Authorities.    

- Jay Rossello

The contents of this article are intended to convey general information only, and not to provide legal advice or opinions.  Please contact the Office of Legal Affairs (210-458-4105) to obtain legal counsel on any particular university issue or matter.