Beltway Buzz – Ogletree & Deakins
DACA Regulations Finalized. On August 24, 2022, the U.S. Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS) released a final rule to codify the Deferred Action for Childhood Arrivals (DACA) policy. The policy, which was initiated more than ten years ago via a memorandum by then-secretary of homeland security Janet Napolitano and proposed as a rule on September 28, 2021, grants work authorization and deferred action from removal proceedings to “certain young people who came to the United States many years ago as children, who have no current lawful immigration status, and who are generally low enforcement priorities.”
DACA has been the subject of multiple legal challenges over the years and the Biden administration is undoubtedly hoping that DACA’s current iteration, which has gone through notice-and-comment rulemaking, proves more durable. Despite the time that has passed since the policy’s creation in June 2012, USCIS has not extended the original eligibility dates, meaning that the policy applies only to qualifying individuals who “[c]ame to the United States under the age of 16,” “were not above the age of 30 on June 15, 2012,” and “have continuously resided in the United States since June 15, 2007.” The regulation supersedes the Napolitano memo and becomes effective on October 31, 2022. The final rule is scheduled to be published in the Federal Register on August 30, 2022.
H-1B Cap Hit. Speaking of USCIS, on August 23, 2022, the agency announced that it had “received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2023.” Beyond the cap issue, the H-1B program is always a top candidate for reform, whether by Democrats and Republicans in the U.S. Congress, or administrative regulators. The Buzz is tracking both the H-1B and L-1 Visa Reform Act in Congress, as well as the pending DHS/USCIS proposal to amend the regulations implementing the program. Jennifer M. Cofer and Amanda M. Mullane have the details on the USCIS announcement.
PLA Proposal Introduced. Late last week, the U.S. Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) issued a proposed rule that would amend the Federal Acquisition Regulation (FAR) in order to implement President Joe Biden’s February 4, 2022, executive order mandating the use of project labor agreements (PLAs) on federal construction projects that cost $35 million or more. (The executive order replaces a similar executive order issued in 2009 by then-president Barack Obama that had encouraged, rather than required, project labor agreements.) According to the proposal, “[r]equiring a PLA means that every contractor and subcontractor engaged in construction on [a] project agree, for that project, to negotiate or become a party to a project labor agreement with one or more labor organizations.” The proposed rule states that exceptions to the PLA mandate would be granted when:
- “Requiring a project labor agreement on [a] project would not advance the Federal Government’s interests in achieving economy and efficiency in Federal procurement.” Examples are when the project (1) is of short duration and uncomplicated, (2) involves specialized skills that are available only through a small number of contractors, or (3) is of “unusual and compelling urgency” that makes the use of a PLA impracticable.
- “Market research indicates that requiring a project labor agreement on the project would substantially reduce the number of potential offerors to such a degree that adequate competition at a fair and reasonable price could not be achieved.”
- “Requiring a project labor agreement on [a] project would otherwise be inconsistent with statutes, regulations, Executive orders, or Presidential memoranda.”
Comments on the proposed rule are due by October 18, 2022.
OFCCP Opens Construction Contract Notification Portal. This week, the Office of Federal Contract Compliance Programs (OFCCP) announced the debut of the Notification of Construction Contract Award Portal, an online platform intended to “make it easier for contracting officers and contractors to submit information about construction contract awards, which will provide more timely and complete information on federal contracts.” Such information includes the value and duration of a contract, the contract receiving entity, and the location at which the contract will be performed. Current law requires contractors (as well as contracting officers and applicants) to notify OFCCP “within 10 working days of an award of a federal or federally assisted construction contract or subcontract in excess of $10,000.” The portal opened today, August 26, 2022, and the landing page includes frequently asked questions (FAQs), how-to videos, and a user guide. Christopher J. Near, Morgan Pike Epperson, and T. Scott Kelly have the details.