June 2025 Visa Bulletin – State Department Hits Pause on India and Play on China and Rest of World
The State Department has published the June Visa Bulletin. In a reversal from May, which saw virtually no advances, priority dates do move forward in two categories for China and three for all other countries, although India remains stagnant.
Below is a summary that includes Final Action Dates and changes from the previous month, but first – some background if you are new to these blog posts. If you are familiar with the Visa Bulletin, feel free to skip the next paragraph.
The Visa Bulletin is released monthly by the U.S. Department of State, n collaboration with U.S. Citizenship and Immigration Services (USCIS). If your priority date (that is, the date you were placed on the waiting list) is earlier than the cutoff date listed in the Bulletin for your nationality and category, that means a visa number is available for you that month. That, in turn, means you can submit your DS-260 immigrant visa application (if you are applying at a U.S. embassy abroad) or your I-485 adjustment of status application (if you are applying with USCIS). If you already submitted that final step and your category then retrogressed, it means the embassy or USCIS can now approve your application because a visa number is again available.
Now for the June Visa Bulletin:
As noted above, no changes from May for India:
EB-1 halts at February 15, 2022
EB-2 freezes at January 1, 2013
EB-3 Professionals and EB-3 Other Workers pause at April 15, 2013
Two categories move forward for China:
EB-1 halts at November 8, 2022
EB-2 advances 2 months to December 1, 2020
EB-3 Professionals advances 3 weeks to at November 22, 2020
EB-3 Other Workers stalls at April 1, 2017
All Other Countries experiences the most forward movement:
EB-1 remains current
EB-2 advances almost 4 months to October 15, 2023
EB-3 Professionals advances more than 1 month to February 8, 2023
EB-3 Other Workers advances 1 month to June 22, 2021
NOTE: USCIS will accept I-485 applications in June based on Final Action Dates, not the more favorable Dates for Filing chart.
Additional Tariffs On the Runway? Commerce Seeks Public Comments on Potential Commercial Aircraft, Engines, and Parts Tariffs
While many in the aviation industry are busy trying to navigate the existing U.S. tariff regime, they should also consider the potential impact of a new investigation that could lead to additional tariffs (e.g., 25 percent, based on recent similar investigations). On May 1, 2025, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) initiated a Section 232 investigation to determine the effects on the national security of imports of commercial aircraft and jet engines, and parts thereof (collectively, “aircraft and aircraft parts”). The current unpublished Federal Register notice of investigation can be found here.
This investigation is just the latest Section 232 investigation on imported merchandise, following closely on the heels of recently initiated investigations on lumber, semiconductors, pharmaceuticals, critical minerals and copper, just to name a few. Moreover, the U.S. has already imposed tariffs pursuant to Section 232 on autos and auto parts and on steel and aluminum articles.
During this investigation, BIS will allow for interested parties to submit written comments to inform the agency’s decision on whether to take action, including by imposing tariffs or quotas on imports. BIS is most interested in receiving comments on the:
current and projected demand in the U.S. for aircraft and aircraft parts;
extent to which domestic production of aircraft and aircraft parts can meet domestic demand;
role of foreign supply chains in meeting U.S. demand for aircraft and aircraft parts;
concentration of U.S. imports of aircraft and aircraft parts from a small number of suppliers and related risks;
impact of foreign government subsidies and predatory trade practices on the competitiveness of the aircraft and aircraft parts industry in the U.S.;
economic impact of artificially suppressed prices of aircraft and aircraft parts due to foreign unfair trade practices and state-sponsored overproduction;
potential for export restrictions by foreign nations, including the ability of foreign nations to weaponize their control over supplies of aircraft and aircraft parts;
feasibility of increasing domestic capacity for aircraft and aircraft parts to reduce reliance on imports;
impact of current trade policies on domestic production of aircraft and aircraft parts and whether tariffs or quotas are necessary to protect national security.
If the Section 232 tariffs on autos and steel/aluminum are any indication of the likely outcome, BIS’s investigation may result in imposition of a 25 percent duty on aircraft and aircraft parts. It remains to be seen whether any Section 232 tariffs on aircraft and aircraft parts, if imposed, may allow for import adjustment offsets if assembly occurs in the U.S. (similar to the Section 232 auto import adjustment) or if exemptions will be granted for certain countries (e.g., in the U.S.-U.K. trade deal).
BIS will allow for interested parties to submit written comments on this investigation during the comment period of within 21 days of official publication in the Federal Register, which we anticipate will be on May 13, 2025, making the comment period deadline June 3, 2025. Parties that may be impacted by tariffs or quotas on imports of aircraft and aircraft parts should strongly consider whether to submit comments or to begin strategic planning to deal with the added costs for aircraft and aircraft parts.
DHS: E-Verify System Error May Require Employer Correction
Employers that received a Final Nonconfirmation (FNC) result from E-Verify for certain cases between April 9 and May 5, 2025, may have to take corrective action due to a recently reported system error.
Background on the E-Verify System Error
The U.S. Department of Homeland Security (DHS) announced on May 19, 2025, that E-Verify experienced a technical issue with Social Security Administration (SSA) mismatch cases, which were referred between April 9 and May 5, 2025, to resolve a tentative nonconfirmation (TNC). This included cases with dual SSA and DHS mismatches if the employee visited an SSA field office to resolve the issue but did not contact DHS.
As a result, some cases may have incorrectly received a FNC result even after the employee took appropriate steps to resolve their TNCs at an SSA office. This error may falsely indicate that an employee is not authorized to work even though they followed the resolution process as required.
Employer Action May Be Required
According to DHS, if an employer received an FNC for an E-Verify case referred between April 9 and May 5, 2025, where the mismatch involved the SSA, or both the SSA and DHS:
For affected cases, do not take adverse action and do not terminate the employee based on the FNC result.
Create a new E-Verify case for the affected employee.
If a new E-Verify case was created and it received an Employment Authorized result, no further action is needed.
Additionally, DHS notified employers that the “E-Verify Needs More Time” status message may remain visible longer than usual for these cases.
Pressing Pause: Federal Agencies Halt Enforcement of Mental Health Parity Rule
On May 15, 2025, the Departments of Labor, Health and Human Services and the Treasury (the Departments) announced a non-enforcement policy regarding the final rule issued in September 2024 under the Mental Health Parity and Addiction Equity Act (MHPAEA) (the 2024 Final Rule).
This announcement comes after President Donald J. Trump issued Executive Order 14219 earlier this year, directing federal agencies to review regulations to identify those that are unconstitutional, otherwise not supported by statutory language, harm the national interest or place undue burdens on small businesses or private parties that are not outweighed by public benefits.
The enforcement pause also comes in the wake of a lawsuit filed by the ERISA Industry Committee (ERIC) in the United States District Court for the District of Columbia challenging the Nonquantitative Treatment Limitations (NQTL) requirements of the 2024 Final Rule on the grounds that they are arbitrary and capricious and contrary to law. In their announcement, the Departments requested that the ERIC litigation be stayed while they reconsider whether to rescind the 2024 Final Rule in its entirety in accordance with Executive Order 14219.
In the event the Departments choose not to rescind the 2024 Final Rule, the non-enforcement policy still provides a significant amount of runway before plan sponsors will be required to comply with the 2024 Final Rule as the Departments have stated that they will not enforce the 2024 Final Rule until a final decision in the ERIC litigation is issued and for an additional 18 months thereafter.
What Does This Mean for Plan Sponsors?
Importantly, this enforcement relief does not modify the provisions of the Consolidated Appropriations Act of 2021 (CAA of 2021) that the regulations were meant to implement, cease all enforcement activities related to the MHPAEA, or invalidate previous guidance issued by the Departments related to mental health parity. Rather, it only applies to those portions of the 2024 Final Rule that implemented the CAA of 2021 and were considered new, for example:
Updated evidentiary standards and processes related to a plan’s NQTLs, including the need to collect and evaluate outcomes data;
New standards associated with a plan’s NQTL Comparative Analysis, including: (i) content requirements of the NQTL comparative analysis itself; (ii) the fiduciary certification requirements;
New definitions for key terms under MHPAEA; and
The meaningful benefits requirement.
As a result, although this enforcement pause is extremely welcome and does provide substantial relief to plan sponsors and third party administrators attempting to implement the significant changes described above, plan sponsors must continue to comply with the mental health parity requirements set out in the MHPAEA, the 2013 final rule and related sub regulatory guidance as there is no indication that the Departments will cease general investigation and enforcement of MHPAEA. Plan sponsors should also consider if any action is required to comply with the NQTL Comparative Analysis provisions of the CAA of 2021.
EEOC Opens 2024 EEO-1 Reporting Platform With Hard Filing Deadline on June 24, 2025
On May 20, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) opened the 2024 EEO-1 Component 1 data collection filing platform with a hard deadline for all filings of 11:00 p.m. (EDT) on June 24, 2025.
Quick Hits
The 2024 EEO-1 data collection is set to open on May 20, 2025, and close at 11:00 p.m. (EDT) on June 24, 2025.
The EEOC said the collection period will not extend beyond the deadline.
There is a new instruction booklet for reporting for the 2024 cycle that removes the option to report employees as nonbinary.
Hard Deadline
The EEOC said there will be a “shorter collection period” for employers to file their 2024 reports, stating that the period will not extend beyond the “Published Due Date” deadline on June 24, 2025. The EEOC said that once the deadline “passes, no additional 2024 EEO-1 Component 1 report(s) will be accepted.”
Additionally, the EEOC said that all communications this filing cycle will be handled electronically, and no notifications will be sent via postal mail.
Unlawful Discrimination
In a separate statement, EEOC Acting Chair Andrea Lucas reminded employers of their obligations under Title VII of the Civil Rights Act of 1964 “not to take any employment actions based on, or motivated in whole or in part by, an employee’s race, sex, or other protected characteristics.” (Emphasis in original). The warning aligns with the Trump administration’s policy focus on eliminating diversity, equity, and inclusion (DEI) programs and its deemphasis of disparate impact liability.
Changes to Reporting
On May 12, 2025, the Office of Management and Budget (OMB) approved the EEOC’s 2024 EEO-1 Instruction Booklet, which included some key changes to reporting procedures. The new booklet eliminates the option to report nonbinary employees, allowing “only binary options (i.e., male or female) for reporting employee counts.”
Further, despite the rescission of Executive Order 11246, which mandated affirmative action programs in federal contracting, the new instruction booklet states that federal contractors with fifty or more employees are still required to file EEO-1 reports for the 2024 cycle.
Next Steps
EEOC regulations require that certain private employers with one hundred or more employees and federal contractors with fifty or more employees annually report the number of individuals they employ, broken down by job category and by sex and race or ethnicity. The data is collected electronically through the web-based “EEO-1 Component 1 Online Filing System (OFS).”
The EEOC has published a webpage with resources for employers, including frequently asked questions (FAQs), the 2024 instruction booklet, a user guide, and other resources.
Employers with EEO-1 reporting obligations may want to promptly begin preparing and submitting EEO-1 filings with particular consideration of the hard filing deadline.
DOJ Civil Rights Fraud Initiative Signals Expansive Enforcement Threat for Employers Receiving Federal Funds
On May 19, 2025, the U.S. Department of Justice (DOJ) launched its Civil Rights Fraud Initiative. This is a coordinated enforcement effort aimed at using the False Claims Act (FCA) to investigate and, where appropriate, litigate civil rights violations committed by recipients of federal funds. This effort, announced through both a press release and a memorandum from the deputy attorney general, reflects a significant escalation in the federal government’s posture toward civil rights compliance and underscores expanding legal exposure for employers, contractors, and institutions operating under federal contracts or grants.
Quick Hits
The DOJ’s new Civil Rights Fraud Initiative treats violations of civil rights laws by federal fund recipients including contractors and grantees as potential fraud under the False Claims Act, exposing employers to treble damages and whistleblower lawsuits.
Executive Order (EO) 14173 requires contractors and grantees to certify compliance with antidiscrimination laws; the DOJ now warns that diversity, equity, and inclusion (DEI) policies granting benefits or burdens based on race or sex may render such certifications false and legally actionable.
The DOJ is explicitly inviting whistleblowers and third parties to report discriminatory practices and bring qui tam actions under the FCA, significantly expanding the enforcement risk for employers with federal funding.
Pursuing Civil Rights Violations as Fraud
The DOJ’s memorandum makes clear that civil rights noncompliance may now be treated as a form of fraud. Specifically, the initiative is aimed at those who “defraud the United States by taking its money while knowingly violating civil rights laws.” The DOJ identifies the False Claims Act, 31 U.S.C. § 3729 et seq., as its “primary weapon against government fraud, waste, and abuse,” noting that FCA liability includes treble damages and significant penalties.
Federal funding recipients, including contractors and universities, may be liable under the FCA when they certify compliance with laws such as Title IV, Title VI, or Title IX of the Civil Rights Act of 1964, while “knowingly engaging in racist preferences, mandates, policies, programs, and activities—including through diversity, equity, and inclusion (DEI) programs that assign benefits or burdens on race, ethnicity, or national origin.”
The DOJ draws a direct line from civil rights violations to material falsehoods in government certifications. For example, the memo warns that a university could face FCA liability if it “encourages antisemitism, refuses to protect Jewish students, allows men to intrude into women’s bathrooms, or requires women to compete against men in athletic competitions.”
EO 14173 Certification Adds to FCA Exposure
The memorandum explicitly cites EO 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, which President Trump issued on January 21, 2025. The order requires that recipients of federal funds certify that they do not maintain illegal discriminatory practices and affirms that such certifications are material to receiving payment.
The DOJ reiterates the EO’s rationale that “racist policies ‘violate the text and spirit of our long-standing Federal civil-rights laws.’” The memorandum goes further, warning that “many corporations and schools continue to adhere to racist policies and preferences—albeit camouflaged with cosmetic changes that disguise their discriminatory nature.” This language signals potential scrutiny not only of the substance of policies but also of their perceived intent and effect.
The combination of EO 14173’s certification requirement and the DOJ’s enforcement authority under the FCA creates a potent legal framework through which DEI-related practices may be investigated and, if deemed unlawful, penalized as fraud.
Whistleblower Litigation Encouraged
Perhaps most notable for employers is the DOJ’s clear encouragement of private enforcement. The memo cites the U.S. Congress’s delegation of authority to private parties under 31 U.S.C. § 3730 to bring qui tam suits, and the DOJ “strongly encourages these lawsuits.” In addition, the DOJ encourages anyone with knowledge of potential civil rights violations to report the information to federal authorities. This signals that the government views whistleblower litigation as an integral enforcement mechanism under this initiative.
Coordinated Federal Effort
The Civil Rights Fraud Initiative will be co-led by DOJ’s Civil Fraud Section and Civil Rights Division and supported by all 93 U.S. attorney’s offices. The initiative also includes coordination with the Criminal Division and federal agencies such as the U.S. Department of Education, the U.S. Department of Labor, and U.S. Department of Health and Human Services. The memo outlines plans for regular inter-agency meetings and joint enforcement actions, as well as partnerships with state attorneys general and local law enforcement.
Implications for Employers
This initiative creates a new legal landscape for any organization receiving federal funds. What were once internal compliance matters or employment policy debates may now create exposure to allegations of fraud. The DOJ’s expansive framing, including its reference to “camouflaged” DEI programs and undefined “racist preferences,” raises significant uncertainty for employers attempting to maintain legally compliant DEI initiatives. Certifications made under EO 14173 may create risk of civil or criminal FCA actions by the government or a whistleblower.
Mass Arbitration Rules Under Scrutiny as Live Nation Asks SCOTUS to Overturn Heckman
Live Nation’s petition to overturn the Ninth Circuit’s Heckman decision highlights the importance of allowing parties to develop arbitration procedures tailored to mass arbitration.
Heckman casts a shadow on attempts by arbitration services and companies to design rules needed to address the challenges and complexities of mass arbitration proceedings brought by consumers and employees.
Until the Supreme Court weighs in, companies should exercise increased caution in drafting arbitration agreements with mass arbitration procedures.
On May 5, 2025, Live Nation filed a petition for writ of certiorari asking the U.S. Supreme Court to address two issues: (1) clarify whether the Federal Arbitration Act (FAA) protects arbitration agreements with procedures designed for “mass arbitration” and (2) decide whether California’s severability doctrine is preempted by the FAA because it targets and disproportionately invalidates arbitration agreements.
Background
Live Nation’s petition comes in the wake of the Ninth Circuit’s decision in Heckman v. Live Nation Ent. Inc., which invalidated arbitration agreements between Live Nation and consumers who bought tickets on Ticketmaster’s website. The agreements at issue were to be administered by New Era ADR and contained provisions designed to manage mass arbitrations. Specifically, the agreements offered two types of arbitration: (1) “Standard Arbitration” procedures akin to traditional arbitration on an individual basis and (2) “Mass Arbitration” procedures designed for the management of five or more cases with common issues of law or fact. The Mass Arbitration rules included special mechanisms to manage mass arbitrations, including “batching” of similar cases and using “bellwether” cases to inform and encourage settlement. The rules also included discovery limitations, briefing limitations, limited rights to appeal grants of injunctive relief, and arbitrator selection provisions that, according to the plaintiffs, conflicted with California law.
The Ninth Circuit held that the arbitration agreement was procedurally and substantively unconscionable. It took issue with how the agreements were presented to consumers and criticized New Era’s rules as “internally inconsistent, poorly drafted, and riddled with typos.” The court went on to portray portions of the New Era rules as unfair and designed to protect the company and force claimants into an unfavorable forum.
The Ninth Circuit then held on “alternate and independent grounds” that “the FAA does not preempt California’s Discover Bank rule as it applies to mass arbitration.” Under Discover Bank, the California Supreme Court effectively held that most class actions waivers are unconscionable in consumer contracts. This rule was later extended to employment arbitration agreements in Gentry v. Superior Court, 42 Cal. 4th 443 (2007). However, in Concepcion, the Supreme Court held that the Discover Bank rule was preempted by the FAA because it was hostile to arbitration agreements. By holding that the FAA does not preempt Discover Bank in the context of mass arbitrations, the Ninth Circuit may have opened the door to invalidating arbitration agreements with mass arbitration procedures, though the decision might be limited to the unique facts presented in Heckman.
Cert Petition
Live Nation’s petition to overturn Heckman highlights the importance of allowing parties to develop arbitration procedures tailored to mass arbitration. The plaintiffs’ bar has pioneered the tactic of filing hundreds or thousands of identical arbitration claims to saddle companies with significant filing fees upfront and using that leverage to pressure companies into settlement, regardless of the merit of the claims. Companies and arbitration service providers should be free to develop arbitration procedures designed to resolve mass arbitrations fairly, including reasonable experimentation batching, bellwether cases and less-punitive fee structures. The Supreme Court has repeatedly recognized that arbitration is a matter of contract, and both the Supreme Court and other circuit courts have recognized that classwide arbitration procedures can be permissible under the FAA if properly agreed on. The tension between these precedents and the Ninth Circuit’s decision in Heckman may lead the Supreme Court to take up the case.
Additionally, Live Nation’s petition contends that the district court should have severed any unconscionable provisions from its agreement or enforced a provision to use a back-up arbitration service provider (FairClaims) if New Era was unable to conduct the arbitration. The petition contends that California’s severability doctrine facially targets arbitration agreements, and, in practice, California courts decline to sever offensive clauses from arbitration contracts but liberally sever offensive clauses from non-arbitration contracts. The petition provides a detailed analysis showing that California courts invalidate the entire contract at a statistically higher rate for arbitration contracts compared to non-arbitration contracts. In a prior case in 2015, the Supreme Court granted certiorari to address whether California’s arbitration-specific severability rule is preempted by the FAA, only to have the case settle prior to oral argument. The Court’s previous interest in this issue suggests the Court might grant certiorari again.
Takeaways
The scope of the Ninth Circuit’s decision in Heckman is not readily clear and might be limited to the specific arbitration agreement and provisions used by Live Nation. Yet, the decision casts a shadow on attempts by arbitration services and companies to design rules needed to address the challenges and complexities of mass arbitration proceedings brought by consumers and employees. Until the Supreme Court weighs in, companies should exercise increased caution in drafting arbitration agreements with mass arbitration procedures. Companies should also carefully review arbitration agreements for compliance with California law, as strict application of California’s unconscionability and severability doctrines can result in the complete invalidation of arbitration agreements.
EPA Provides Update on PFAS Drinking Water Standards
On 14 May 2025, Environmental Protection Agency (EPA) Administrator Lee Zeldin announced the agency’s plan to address the National Primary Drinking Water Regulations (NPDWR) for per- and polyfluoroalkyl substances (PFAS) finalized last spring, as discussed in our prior alert (22 April 2024). Administrator Zeldin announced that the agency would continue to defend the “maximum contaminant levels” (MCLs) for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) of 4 ppt, but would propose regulations intended to withdraw MCLs for four additional PFAS that were included in the NPDWR: perfluorohexane sulfonic acid (PFHxS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX), and perfluorobutane sulfonic acid (PFBS). EPA is expected to reconsider the regulatory determinations for these four PFAS, which are found in various products, including water or stain protectants and surface coatings for fabrics, including carpets and rugs, as well as fire-fighting foams. Though EPA will still need to officially act on the recission, water systems are expected to still need to comply with PFOA and PFOS MCLs at 4 ppt, which will be extremely costly.
Last week’s development follows Administrator Zeldin’s 28 April 2025 announcement, discussed in our prior alert, that EPA would address “the most significant compliance challenges” under the final NPDWR published last year. In line with that statement, EPA plans to propose regulations to extend the deadline for MCL compliance from 2029 to 2031, establish a federal exemption framework, and conduct increased outreach to water systems. EPA also committed to supporting the US Department of Justice in defending ongoing legal challenges to the NPDWR with respect to PFOA and PFOS. These challenges have been stayed in federal appellate court while EPA’s new leadership considered its path forward with the NPDWR.
EPA also appears to be prioritizing “holding polluters accountable” and protecting drinking water systems as passive receivers of PFOA and PFOS through reduction of PFAS sources in the environment. How they plan to do so is one of many open questions surrounding PFAS regulation under the new administration, including withdrawing the regulation designating certain PFAS compounds as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substances, which is still under EPA consideration. However, while the developments last week—including EPA’s announcement pushing back the Toxic Substances Control Act (TSCA) 8(a)(7) PFAS reporting period from 11 July 2025 to 13 April 2026, with a new submission deadline of 13 October 2026—signals some rollback, PFAS remains an active issue in the new administration.
Four Trump Administration Steps to ‘Deregulate’ With a Reduced Workforce
For decades, businesses have focused on “doing more with less,” maximizing efficiency by optimizing resources and streamlining processes to achieve greater output with fewer inputs. This effort often involves leveraging technology, improving productivity, and reducing waste to maintain or enhance performance.
The second Trump Administration will likely be remembered for its Department of Government Efficiency (DOGE) initiative, which is working toward reorganizing federal agencies, canceling contracts, and reducing the government workforce. The Trump Administration is working on other regulatory reform efforts as well. Here, we break out various efforts the Administration has undertaken in furtherance of its deregulatory agenda.
Regulatory Background
The federal Administrative Procedure Act (APA) requires government agencies to follow certain procedures to adopt, amend, or repeal regulations. As we have discussed, the APA grants agencies the discretion to implement policy changes so long as they follow applicable procedural and substantive requirements. (For more see here.) Generally, the APA provides a structured process for creating regulations under which agencies draft proposed rules that are then published in the Federal Register to invite public comment by a set date. After reviewing feedback, agencies may revise the rules before finalizing them. The final rules are published, becoming legally binding unless challenged in court.
The Trump Administration argues that the certainty that historically flowed from the languid pace of regulations also generated inertia under which regulated entities suffered. Specifically, the Administration’s “Unleashing Prosperity Through Deregulation” order asserts that “[t]he ever-expanding morass of complicated Federal regulation imposes massive costs on the lives of millions of Americans, creates a substantial restraint on our economic growth and ability to build and innovate, and hampers our global competitiveness.”
Using standard procedures, repealing regulations often takes time. As one example, the APA provides that a regulation established using notice-and-comment procedures can be revised in most circumstances only by using the same procedures and even then, the revisions can be subject to litigation. Thus, eliminating regulations the Administration has targeted for repeal could take years. Accordingly, it is unsurprising that President Trump is attempting to use alternative means to accomplish his regulatory objectives.
Below, we explain four different procedures the Administration has indicated that it may deploy.
Deregulation After Request
The first method of deregulation may be the simplest; the Administration seeks to work with the regulated community to remove pressure points.
One way of doing this is through the typical government relations process in which businesses or trade associations seek meetings with government officials and share their concerns and ways the government might address them. Government relations attorneys (including ourselves) and colleagues can assist in framing requests to regulators and providing focused and appropriate information.
A second means involves technology. Shortly after taking office, regulations.gov was modified to include a page for “Deregulation suggestions.” The page — styled as a submission form — asks for regulatory background; an indication of what kind of regulatory recission is requested (e.g.,notice of proposed rulemaking, final rule, direct final rule, etc.); a justification as to why recission is required; and information on the involved agency. Direct outreach in this manner is one means to address regulated community concerns and to solicit deregulatory ideas.
Compelled Deregulation
The Administration might also compel agencies to winnow back regulations. Two concepts embraced by the Trump Administration illustrate this approach.
Ten-For-One: Executive Order (EO) 13771, signed in 2017 during President Trump’s first term, aimed to reduce regulation and control regulatory costs by requiring agencies to repeal at least two existing regulations for each new one issued, and by imposing a regulatory budget that capped the total incremental costs of new regulations. This “two-for-one” rule and regulatory budget were intended to encourage agencies to be more cost-conscious in their regulatory activities. In his second term, President Trump quintupled this requirement requiring that 10 rules be repealed for every new rule issued.
Zero-Based Budgeting: In the EO entitled “Zero-Based Regulatory Budgeting to Unleash American Energy,” the Administration requires agencies to reexamine regulations that may sit on the books unexamined for long periods of time. For agencies touching on energy and environmental issues (e.g., US Environmental Protection Agency, the US Army Corps of Engineers, and the US Department of Energy), agencies must promulgate a “sunset rule” rendering a wide swath of regulations invalid no more than five years in the future unless the director of the White House Office of Management and Budget determines that the regulation or amendment “has a net deregulatory effect.”
Automatic Deregulation
Another method the Administration appears willing to explore is deregulation after a demonstration (by whom?) that the regulation has been effectively superseded by intervening case law. In these circumstances, the APA’s “good cause” exemption may allow notice-and-comment procedures to be avoided in favor of using other tools like “interim final rules” or “direct final rules” to deregulate faster. (For more on this, see here.)
Amongst its suite of EOs and related memoranda released in early April, the Trump Administration released an order, “Directing the Repeal of Unlawful Regulations.” The order notes that several recent US Supreme Court decisions have limited the power of federal agencies, including Loper Bright Enterprises v. Raimondo (reducing deference given to agency interpretations of statutes), West Virginia v. EPA (preventing agencies from resolving “major” economic or political questions), and Sackett v. EPA (narrowing the definition of water bodies subject to federal Clean Water Act regulation), and suggests that agencies should take steps to “effectuate the repeal” of any identified “potentially unlawful regulations.” Where possible, these steps could include invoking the APA’s “good cause” exception on the grounds that notice and comment is “unnecessary” where the existing regulations are inconsistent with binding precedent. In practice, recent Trump Administration guidance related to the social cost of carbon builds on this approach by referring to a principle of “nonacquiescence,” which provides that lower court decisions that are inconsistent with agency preferences can be viewed as nonbinding. (For more see here.) If the executive branch is permitted to limit the effects of non-Supreme Court decisions on federal regulations, the need for formal deregulation may be minimized.
Deregulation by Algorithm
Finally, a recent Wired article noted that a DOGE operative, who most recently had been a third-year student at the University of Chicago, has been tasked with using artificial intelligence to rewrite US Department of Housing and Urban Development (HUD) regulations. The article reports that the operative “appears to be leading an effort to leverage artificial intelligence to review HUD’s regulations, compare them to the laws on which they are based, and identify areas where rules can be relaxed or removed altogether.” This effort, purportedly, has resulted in an Excel spreadsheet with proposed changes that requires past regulations’ “overreach” to be reviewed by HUD staffers for submission to HUD’s Office of General Counsel for approval.
Preparing for Deregulation
The regulated community can best position itself for business impacts — positive or negative — flowing from deregulation by first conducting a holistic review of regulatory pressure points and then (with counsel and a strong government relations team) develop a plan to maximize benefits and minimize potential downside impacts through business, government affairs, and legal efforts. While some of the Administration efforts outlined above may be subject to challenges in litigation, it is also possible that US Congress could render permanent some deregulatory efforts through legislation.
Tax Bill Seeks to Permanently Increase Gift, Estate, and Generation-Skipping Transfer Tax Exemptions
On May 14, the House Ways and Means Committee approved the Make American Families and Workers Thrive Again Act, which would preserve and expand provisions of the 2017 Tax Cut and Jobs Act (TCJA). The bill contemplates a permanent increase in the estate, gift, and generation-skipping transfer (GST) tax exemptions.1
Under TCJA, the gift, estate, and GST exemptions were increased from $5 million per person plus annual inflation adjustments to $10 million per person plus annual inflation adjustments.
Given the inflation adjustment, the exemptions are currently $13,990,000.
If Congress does not act, the exemptions are slated to be reduced to their pre-TCJA levels after Dec. 31, 2025, i.e., $5 million plus an inflation adjustment (approximately $7 million). Unused exemption over the reduced amounts would be permanently lost.
The bill would permanently increase the gift, estate, and GST exemptions to $15 million in 2026.
Annual inflation adjustments would begin to apply in 2027.
Considerations for Estate Planning Strategy
Lifetime gifting to properly structured trusts to which GST exemption is allocated may preserve assets without incurring gift, estate, or GST tax for multiple generations.
Lifetime gifting is commonly used in connection with estate planning freeze techniques, the limits of which, in some respects, depend on the amount that can be gifted as “seed capital” for those structures.
A permanent increase in the exemption amounts may permit those with available assets to commit more value to those structures and eliminate the need for those contemplating gifting to rush to complete those transactions before sunsetting under existing law would apply.
1 As of the publication date, the House Ways and Means Committee has approved this version of the bill. The text remains subject to change during the Senate process and potential conference negotiations.
Cira Luo contributed to this article
Is it Prior Art? Check the Provisional Application!
This Federal Circuit Opinion analyzed collateral estoppel and the extent to which the non-provisional document would benefit from the provisional application’s priority date, as it relates to Pre-AIA 35 U.S.C. § 102(e).
Background
U.S. Patent Application No. 11/005,678 (“‘678 application”), filed on December 7, 2004 that claims priority to a provisional application filed on July 28, 2000, is directed to logistic systems and methods for transportation of goods that connect and share customer order information between various shippers across different transportation modes. The Examiner rejected the ‘678 application under pre-AIA 35 U.S.C. § 102(e) and 35 U.S.C. § 103. Specifically, claims 1, 2, 8, 10-13, and 24-25 were rejected as anticipated under pre-AIA 35 U.S.C. § 102(e) by U.S. Patent Application Publication No. 2002/0049622 A1 (“Lettich”), which was filed April 26, 2001 and published on April 25, 2002 , and claims 3, 5-7, 9, 15-20, and 22 were rejected as obvious under 35 U.S.C. § 103 over Lettich in view of Karen Rojek’s, How Baxter Improved Data Exports, dated 1998. In addition, Lettich is a non-provisional U.S. patent application that claims priority to provisional application No. 60/200,035, filed on April 27, 2000 (the “Lettich Provisional Application”).
In April 2016, the Patent Trial and Appeal Board (the “Board”) reversed the Examiner’s rejections, finding that Lettich was not prior art under 35 U.S.C. § 102(e). In September 2016, the Examiner filed a Request for Rehearing, alleging that the Board had applied an incorrect version of 35 U.S.C. § 102(e) to determine whether Lettich qualified as prior art. Thereafter, the real party in interest, Odyssey Logistics & Technology Corp., filed a complaint in the U.S. District Court for the Eastern District of Virginia challenging the Request for Rehearing. See Odyssey Logistics & Tech. Corp. v. Iancu, 959 F.3d 1104, 1106–07 (Fed. Cir. 2020). In Odyssey, the Eastern District Court of Virginia disagreed with Odyssey’s argument that “the rehearing proceedings are an ultra vires action by the PTO.” Id. at 1109. The court dismissed Odyssey’s challenge, and the Federal Circuit affirmed.
In the rehearing, the Board agreed with the Examiner’s argument and amended its original decision to find that Lettich was prior art. The Board, referencing MPEP § 2136.03, found that because there was written description support in the Lettich Provisional Application for Lettich’s claim 1 limitations, the entire Lettich specification benefited from the Lettich Provisional Application’s priority date. The Board further found that the subject matter (e.g., paragraphs, figures, and claims) in Lettich that was referenced in the Examiner’s rejection of the ‘678 claims appropriately addressed the ‘678 claim limitations. Accordingly, the Board affirmed the Examiner’s anticipation and obviousness rejections.
The Appellants, the named inventors for the ‘678 application, appealed the Board’s rehearing decision. They raised three distinct issues: (1) whether the Board’s decision to grant the request for rehearing was ultra vires; (2) whether the Board properly afforded Lettich the earlier filing date of its provisional application for purposes of determining that it was prior art under pre-AIA 102(e); and (3) whether substantial evidence supported the Board’s finding as to anticipation and motivation to combine.
Issues
Are the Appellants estopped from asserting the ultra vires challenge?
Did the Board properly afford Lettich the earlier filing date of its provisional application for purposes of determining that it was prior art under pre-AIA 102(e)?
Was there substantial evidence supporting the Board’s finding as to anticipation and motivation to combine?
Holding(s)
The Appellants are estopped from asserting their ultra vires challenge.
The Board improperly found that Lettich, in its entirety, benefited from the earlier Lettich Provisional Application filing date.
The Federal Circuit did not address the substantial evidence issue.
Reasoning
Whether Appellants Were Estopped From Making The Ultra Vires Challenge
The Board argued that the Appellants are estopped from asserting this argument. In assessing the Board’s argument, the Federal Circuit, citing VirnetX Inc. v. Apple Inc., 909 F.3d 1375, 1377 (Fed. Cir. 2018), listed the four elements of collateral estoppel: (1) a prior action presented an identical issue; (2) the prior action actually litigated and adjudged that issue; (3) the judgment in that prior action necessarily required determination of the identical issue; and (4) the prior action featured full representation of the estopped party. Here, the Federal Circuit held the previous decision in Odyssey estopped the Appellants from arguing that the Board acted ultra vires.
Regarding elements (1) and (2), the Federal Circuit in Odyssey rejected Odyssey’s argument that “the rehearing proceedings are an ultra vires action by the PTO,” which was the same argument advanced by the Appellants in this appeal. Regarding element (3), the judgment on the ultra vires issue necessarily required resolution of whether the Board’s actions satisfied the Administrative Procedure Act’s finality requirement, which Odyssey decided. Regarding element (4), the Certificate of Interest for this appeal listed Odyssey as the real party in interest. Because all four elements were satisfied, the Appellants were estopped from asserting the ultra vires challenge.
Whether The Board Properly Afforded Lettich The Earlier Filing Date
The Federal Circuit held that whether Lettich was prior art under pre-AIA 102(e) turned on whether Lettich was entitled to the priority date of the provisional application. The Board and the Examiner interpreted MPEP § 2136.03 in a manner where, if one claim in Lettich were supported by written description in the Lettich Provisional Application, then the entire Lettich publication benefited from the Lettich Provisional Application’s filing date. However, the Federal Circuit rejected this interpretation.
The Federal Circuit held that in order to apply the provisional application’s priority date to a referenced subject matter in a non-provisional document on which an examiner may rely on to reject a claim, a provisional application must provide written description for it. The Federal Circuit held that support for a single claim in a non-provisional document found in a provisional application did not carry the benefit of the provisional application date to the entire non-provisional document, including subject matter that was not supported in the provisional application.
Here, the Federal Circuit affirmed the Board’s claim 1 rejection because the Board found that the referenced subject matter in Lettich was supported by the Lettich Provisional Application. However, this analysis had not been completed for other claims rejected under 35 U.S.C. 102(e). Accordingly, the Federal Circuit vacated the Board’s decision and remanded the case with instructions for the Board to determine if the subject matter in Lettich referenced in rejecting the remaining claims was supported in the Lettich Provisional Application.
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Fourth Circuit Ruling Provides New Guidance as to Furnishers’ Duty to Investigate Legal Disputes Under the FCRA
The Fair Credit Reporting Act (FCRA) has been a notoriously active area for litigation, especially class-action litigation, in recent years. One issue that continues to be litigated in FCRA cases involving data furnisher liability is the scope of a review that the furnisher must undertake when a consumer dispute is lodged. In particular, courts have been asked in recent years to decide whether consumer disputes involving legal issues, as opposed to disputes over factual inaccuracies appearing in a consumer’s tradeline, fall within the scope of a review required under the FCRA.
Recent decisions from multiple appellate circuits have taken varying approaches to resolve this issue. Adding to the developing authority on this issue, a recent ruling by the Fourth Circuit determined that furnishers must investigate disputes that are based on information that is objectively and readily verifiable, regardless of whether the dispute involves legal or factual issues.
Background of the Case
The case, Roberts v. Carter-Young, Inc., 131 F.4th 241 (4th Cir. 2025), involved a consumer, Shelby Roberts, who disputed a tradeline on her credit report related to the termination of a prior residential lease. Prior to the tradeline being reported, Roberts’ landlord determined that she was unwilling to pay this debt, and it referred the debt to a collection agency, Carter-Young. Carter-Young later reported the debt on Roberts’ tradeline. Roberts disputed this tradeline with the three major credit reporting agencies (CRAs). When notified of this dispute, Carter-Young limited its investigation to confirming the debt with the landlord.
Believing this tradeline review was insufficient, Roberts brought suit under the FCRA. The District Court dismissed Roberts’ claim, finding that her dispute centered upon legal disputes as opposed to factual inaccuracies, and it was therefore not covered by the FCRA’s investigation requirements. On appeal, however, the Fourth Circuit vacated the District Court’s dismissal and remanded the case for further proceedings.
A New Standard in the Fourth Circuit
The legal holding the Fourth Circuit set forth as to the scope of a data furnisher’s review when a tradeline dispute is lodged is notable. Resolving the legal vs. factual issue for the first time in the Fourth Circuit, the court ruled that furnishers must investigate disputes that are based on information that is objectively and readily verifiable, regardless of whether the dispute involves legal or factual issues. This standard mirrored the standard adopted by the Second Circuit in Sessa v. Trans Union, LLC, 74 F.4th 38 (2d Cir. 2023) and the Eleventh Circuit in Holden v. Holiday Inn Club Vacations, Inc., 98 F.4th 1359 (11th Cir. 2024).
However, the Fourth Circuit did not completely reject the possibility that some legal disputes exceed the purview of the FCRA, recognizing the limitations of a furnisher’s investigation. But under this ruling, a furnisher is expected to make reasonable efforts to verify disputed information — even in a legal dispute — so long as the information to be reviewed is objectively and readily verifiable. As to Roberts’ claims specifically, the Fourth Circuit viewed her underlying dispute about whether the debt was owed as something that needed to be determined at the District Court level under the clear and readily verifiable standard.
Implications for Furnishers
For furnishers subject to a lawsuit in the Fourth Circuit’s geographical area, this ruling seems to impose a greater responsibility to conduct thorough investigations of tradeline disputes where the disputed information is clear and verifiable. This responsibility likely adds a new layer of review for furnishers that had been accustomed to conducting a reinvestigation of facts readily available in their records, as certain legal disputes will now also need to be resolved.
Of course, the adoption of legal verbiage such as “objectively and readily verifiable” isn’t likely to end litigation on this issue. At least in the Fourth Circuit (and in the Second and Eleventh Circuits), litigation will likely now center upon whether specific information is actually objectively and readily verifiable and therefore subject to a furnisher liability claim — or whether it falls outside the scope of the FCRA because it is not objectively and readily verifiable. In some ways, this standard is now even more amorphous than before, where it was easier to identify whether a dispute was over a specific fact or over a legal determination. It will bear watching whether other appellate circuits adopt similar or differing standards in the coming months and whether this issue surfaces before the Supreme Court at some point.
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