ACEC submitted comments on a proposal from U.S. Citizenship and Immigration Services (USCIS) to substantially increase the fees associated with employment-based visas.
USCIS processes the documents that engineering firms use to employ international talent when qualified citizens and U.S. residents are not available. This includes optional practical training (OPT) work permissions, H-1B visas, and employment-based green cards. About 90 percent of the USCIS budget comes from visa and other immigration-related fees. The agency generally proposes fee increases every four years, although the fees were last raised in 2016.
In addition to significant increases in a variety of fees connected to employment-based visas, USCIS proposed imposing a $600 asylum program fee on all employers sponsoring temporary workers or workers for permanent residence visas to cover the expanded costs of asylum claims. ACEC urged USCIS to revise the proposed fee schedule with more moderate increases that reflect the financial strain caused by inflation and to seek congressional appropriations to process asylum claims.
The Federal Trade Commission (FTC) issued a proposed rule that would prohibit employers from imposing most noncompete agreements and rescind those currently in effect. The rule includes a limited exception for individuals who own at least 25 percent of a business that is being sold.
ACEC submitted comments on the proposed rule that raised three areas of concern. The Council argued that noncompete agreements should be allowed for any owners of a business because ownership is a transparent transaction. Moreover, the 25 percent threshold is unlikely to be met in most cases in the engineering industry.
The Council also requested greater clarity on when other restrictive covenants, including agreements on customer nonsolicitation, employee nonrecruit, and nondisclosure of intellectual property or other confidential information, are allowed and when the FTC considers them functionally to be noncompete agreements and therefore not allowed.
Finally, ACEC recommended that the ban on noncompete agreements should be prospective instead of retroactive. Many noncompete agreements are paired with some type of financial consideration and rescission of existing noncompetes would amount to a windfall for the employee.
The FTC is expected to publish a final rule by the end of 2023, but it will face legal challenges that will likely draw out the regulatory process.