Regulatory Agenda, We Hardly Knew Ye. Late last week, stakeholders got a glimpse of the administration’s regulatory plans with the release of the Spring 2025 Unified Agenda of Regulatory and Deregulatory Actions. But shortly after the release of the agenda, the Office of Information and Regulatory Affairs’ (OIRA) website went offline for maintenance, and the agenda became unavailable. OIRA’s website is currently operational, with the caveat that it is “currently undergoing revisions,” though the Spring 2025 regulatory agenda remains unavailable. From the very brief moment that the agenda was publicly available, it appears that the U.S. Department of Labor (DOL) will move to issue regulations relating to independent contractors and joint employment under the Fair Labor Standards Act (FLSA). Not sure what happened here, but the Buzz will have a breakdown of the official agenda once it is released.
Proposed H-1B Changes Delayed? In conjunction with the website maintenance at OIRA and the “here it is, here it isn’t” release of the Spring 2025 regulatory agenda, it appears that at least some of the administration’s regulatory proposals have taken a step backward in the rulemaking process. Most notable is U.S. Citizenship and Immigration Services’ (USCIS) proposal to scrap the H-1B lottery and replace it with a wage-based selection process. Last week, that proposal initially cleared OIRA review—putting it one step closer to being made available for public comment—but now it is back under review. This means that stakeholders will likely have to wait a little longer for the release of the proposal.
Fifth Circuit: NLRB Structure Likely Unconstitutional. The U.S. Court of Appeals for the Fifth Circuit issued a decision this week in a consolidated appeal holding that the National Labor Relations Act’s (NLRA) prescribed removal protections for administrative law judges (ALJs) and National Labor Relations Board (NLRB) members are likely unconstitutional. Pursuant to the statute, NLRB ALJs can only be removed when the Merit Systems Protection Board (MSPB) finds good cause. Those members of the MSPB, in turn, may only be removed by the president. The court found that these two layers of “for cause” removal protections are unlawful. For actual Board members, the NLRA provides that they may be removed only “for neglect of duty or malfeasance in office, but for no other cause.” The Fifth Circuit found this protection from removal to be “constitutionally suspect under modern separation-of-powers doctrine.” The court further concluded that the Supreme Court of the United States’ decision on May 22, 2025, that stayed an injunction that would have kept Gwynne Wilcox serving on the Board “reinforces our conclusion that Board Members’ insulation from presidential removal likely violates” the U.S. Constitution.
For now, the Board remains without an operational quorum as nominees Scott Mayer and James Murphy await their confirmation hearings in the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP). General counsel nominee, Crystal Carey, has had her confirmation hearing, but the HELP Committee has not voted on her nomination. Brian E. Hayes, Thomas M. Stanek, and Zachary V. Zagger have the details.
NLRB Acting GC to State Lawmakers: Back Off. With the NLRB seemingly at a standstill, some state governments have taken steps to fill what they view as a policy void. Indeed, some state legislatures have introduced bills that would allow their agencies to assert control over unfair labor practices and union representation elections. Addressing these efforts, NLRB Acting General Counsel William Cowen issued a release stating, “recent measures under consideration by several state legislatures due to the Board’s lack of a quorum very likely would be preempted by the National Labor Relations Act.” Cowen further notes that “the work of the NLRB has largely been unaffected by the temporary absence of a Board quorum” and that “Regional Offices continue to process unfair labor practice and representation cases, and the Acting General Counsel has been delegated litigation authority that would normally be exercised by the Board.”
EEOC Continues Focus on Religious Discrimination. This week, the U.S. Equal Employment Opportunity Commission (EEOC) issued a press release entitled, “200 Days of EEOC Action to Protect Religious Freedom at Work.” The release outlines actions the EEOC has taken during the Trump administration “to defend the religious liberty of American workers.” These enforcement actions involve COVID-19 vaccine mandates, religious-based accommodations, and antisemitism on college campuses. The release serves as a reminder that religious discrimination remains an enforcement priority for the Commission.
USCIS Update. Readers should be aware of the following developments from U.S. Citizenship and Immigration Services (USCIS):
- Anti-American Vetting. USCIS updated its policy manual this week to make changes to how officials should use their discretion when reviewing certain benefit requests. Specifically, the guidance instructs USCIS officials to examine “circumstances where an alien has endorsed, promoted, supported, or otherwise espoused the views of a terrorist organization or group, including those who support or promote anti-American ideologies or activities, antisemitic terrorism, antisemitic terrorist organizations, and antisemitic ideologies.” Evidence of such activity “will be an overwhelmingly negative factor in discretionary analysis.” The guidance further clarifies that this new discretionary analysis applies to National Interest Waiver determinations but not to other employment-based petitions. The new policy is effective immediately.
- False Claims to Citizenship. In an additional update to its policy manual, USCIS clarified that making a false claim to U.S. citizenship does not need to be made intentionally, knowingly, or willfully in order to be found inadmissible.
- Increased Fees. Pursuant to a July 22, 2025, Federal Register notice, USCIS will not accept benefit requests postmarked on or after August 21, 2025, that do not include new fees as established by the Reconciliation Bill (H.R. 1). These fees generally apply to initial applications and work authorization documents relating to asylum, parole, and temporary protected status (TPS) requests. This does not include all the new fees prescribed in H.R. 1, such as the $250 “visa integrity fee.”
The 1994 Crime Bill Remembered. On August 21, 1994, the U.S. House of Representatives passed the Violent Crime Control and Law Enforcement Act of 1994, which was signed into law by President Bill Clinton on September 13, 1994. In terms of its scope, page length, and funding, it is the largest crime bill in U.S. history. It provided funding for the hiring of 100,000 new police officers and nearly $10 billion for the construction of new prisons. Though sometimes referred to as the “1994 Crime Bill” or the “Clinton Crime Bill,” it was then-Senator Joe Biden who drafted the Senate version of the legislation. Readers of a certain age may recall particular provisions of the bill, many of which still resonate in some form or another in current policy debates. For example, the law included the Federal Assault Weapons Ban (which expired in September 2004) and the Violence Against Women Act (a portion of which was struck down by the Supreme Court in United States v. Morrison (2000) as an unconstitutional expansion of the Commerce Clause). The law also added sixty new federal offenses eligible for the death penalty and the “three strikes” lifetime-sentence rule for certain repeat offenders.