A seemingly trivial recognize published last month, by Marco Rubio, Secretary, US Department of State, has large ranging implications for refugees in the US or those aspiring to work or study in America.
It reclassifies border-related restrictions and immigration, claiming that these are “foreign matters functions.” In other words, immigration laws can now be made without the Administrative Procedure Act ( APA ) requirement for public comment and notice.
The’ international affairs function exclusion,’ exempts specific activities from APA needs like notice-and-comment rulemaking. By expanding this explanation, the notification aims to remove a sizable range of government activities from APA legal safeguards.
During a 30- to 60-day open windows, the general public is permitted to comment on a document rules. The anxious company may consider these comments and react in a last version of the plan.
In Trump’s earlier program, numerous plan adjustments had been overturned by authorities because they had violated the APA. For instance, Stanford University, Cornell University, and various chambers of commerce successfully challenged laws that proposed lowering the eligibility requirements for H-1B visas, reducing the duration of the card to one month in case of position at consumer websites, and raising the wage of H-1B staff by as much as 40 %.
Judge Jeffrey S. White of the US district court ( Northern District of California ) in his attempt dated December 1, 2020, had held that the Trump administration had failed to show there was good reason to supply with the moral and thoughtful discussion that is provided by the APAs see and comment needs.
No need for a commenting notice
Greg Siskind, co-founder of Siskind Susser, a law firm specializing in immigration law, stated to TOI:” For years, we have seen US Citizenship and Immigration Services ( USCIS ) impose policies via a memo and lawsuits have successfully challenged this. So, I am guessing the Trump administration wants protection to make rules without any of the public facing protections required by the APA”.
Steven A.,” I believe avoiding APA is exactly what they are trying to do.” Reddy, Neumann, Brown, partner, at the immigration law firm.
Florida based Ashwin Sharma, said,” Rubio’s memo is a procedural Trojan horse. It quietly unlocks the gates, giving Trump 2.0 the unchecked freedom to radically alter immigration law. The immediate effect could still be devastating, especially for Indian nationals, even though courts have repeatedly rejected such overreaches, which will undoubtedly lead to fierce legal opposition.
” As a practical matter, this foreign-affairs determination attempts to create a regulatory fast track for the Trump administration’s immigration agenda. Take note that courts have historically been skeptical of broad applications of the foreign affairs exception, particularly in immigration settings where the connection to diplomatic functions is uncertain. This approach goes against decades of administrative law precedent, which required agencies to demonstrate specific, definite undesirable international consequences before invoking this exception. However, agencies like the Department of State ( DOS), DHS, USCIS, DOL, and others could now claim authority to change the H-1B program or repeal the H-4 EAD ( work permit given to eligible spouses of H-1B workers ). The ramifications extend beyond procedure—this determination signals an intent to implement immigration changes rapidly and with minimal judicial oversight”, said Rajiv S. Khanna, managing attorney at Immigration.com
What might be anticipated?
Sharma predicts” Renewed and relentless attacks on H-1Bs: tightened eligibility standards, skyrocketing denials, and crushing requests for evidence during application-processing. As also elimination of H-4 work permits, stripping thousands of Indian families (especially highly educated spouses ) of livelihoods. We must prepare for crippling new restrictions on the extended two-year duration of Optional Practical Training ( OPT ) that are currently available to international students from the STEM (science, technology, engineering, mathematics ) field, which will denigrate Indian students as “backdoor immigrants” despite their significant contributions to US innovation.
Be aware that this foreign affairs determination creates an unprecedented situation, Khanna advised. Previously, the IT industry, universities, and advocacy groups had 30-60 days to analyse proposed immigration rules, identify problematic provisions, and submit substantive comments that agencies were legally obligated to address. This is the first time these stakeholders will be aware of a new H-1B or F-1 policy ( governing international students ) after it is published as a final rule and is already in effect. This significantly reduces procedural protections and predictability for Indian IT companies with significant US operations and the nearly 75 % of H-1B visa holders who are Indian nationals.
” By framing Immigration as part of broader foreign policy, it allows the Secretary of State to drastically reduce procedural safeguards, and potential challenges for visa applicants seeking redress or contesting decisions. According to Kripa Upadhyay, immigration attorney at Buchalter, it may also make it easier for the government to adjust policies in response to shifting international relations or diplomatic concerns, which may have an impact on the stability and predictability of employment-based visa programs.
According to Upadhyay, consular officers may have more discretion when deciding whether to approve or reject visa applications. This could lead to increased subjectivity in interviews and decisions, with applicants facing potentially inconsistent treatment based on the consular officer’s interpretation of foreign affairs considerations”.
It is now entirely possible for a USCIS officer to approve an executive’s L-1A ( intracompany visa ), but a Consular officer will now use national security and US foreign policy concerns as a decision-making factor, which is subjective and has very little to do with the objective requirements that an applicant must meet in accordance with the Immigration and Nationality Act, she continued.
According to Khanna,” the government’s procedural maneuver, combined with recent measures targeting immigration attorneys, suggests a comprehensive strategy to implement restrictive immigration policies with minimal resistance.” I foresee a two-pronged approach: first, using the foreign affairs exception to rapidly publish final rules without notice and comment, second, discouraging legal challenges through sanctions against attorneys and firms who represent immigrants. This combination is particularly worrying for the Indian diaspora, which has historically relied on litigation and administrative advocacy to defend its interests. Companies and individuals should develop contingency plans and look into alternative visa categories or markets to prepare for potential disruptions.
” Because the foreign affairs function can be subject to diplomatic and geopolitical changes, applicants may experience delays in the visa process as US consulates adjust to new policies or international relations dynamics. Consular officers may need to coordinate with other US government agencies to ensure that visa approvals align with broader foreign policy objectives as a result of this, added Upadhyay.
Can new immigration laws that are put forth without adhering to APA be challenged?
A hope remains, that new immigration policies that are thrust upon unsuspecting stakeholders, virtually overnight, could still be successfully litigated. According to Chris D. Metha, the founder of an immigration law firm in New York,” I foresee that the administration will impose more regulations without getting the support of the public.” The administration can make rules that are acceptable and less likely to be challenged in court if they are in conflict with the statutory provision by obtaining such input from the public, which is a win-win for everyone. After a Supreme Court decision last June 2024, ( Loper Bright v. Raimondo ), courts are no longer required to give deference to a government agency’s interpretation of the statutory provision enacted by Congress. Since the government’s interpretation of the rule can now be more easily overturned, there is now a greater chance of a new rule being successfully challenged in court.
Can the Department of State itself contest this notice?
” The courts remain the ultimate arbiter of the limits of executive authority, and this determination pushes those boundaries to their extreme. According to my assessment, there are compelling arguments to challenge this notification based on administrative law precedent that has consistently rejected expansive interpretations of APA exceptions,” says Khanna.
Because the DOS notification is just a general pronouncement, Mehta says,” It may be challenging the notification itself.” However, when the administration next issues a rule and claims the foreign affairs function exception in the Administrative Procedure Act, the invocation of the exception can certainly be challenged in court on grounds that the rule has no relation to the foreign affairs of the US. A rule prohibiting asylum-seekers who had traversed other nations from applying for asylum at the Southern Border was overturned in CAIR Coalition v. Trump, among other grounds, because it failed to meet the exception. To meet the “foreign affairs” exception, a rulemaking must” clearly and directly” involve a foreign affairs function of the United States.
Sharma said,” The US Constitution grants Congress ( and not the executive branch ) the authority to regulate immigration and foreign commerce. Courts are likely to accept this DOS notification in the light of what it is: an unconstitutional power grab that has been thinly veiled as foreign policy.
The administration’s ability to rewrite immigration policy from the top down and how firmly the courts and the public push back in order to uphold transparency and accountability will be revealed in the coming months. As the dust settles, one thing is clear: immigration, especially high-skilled immigration from India, has become the latest battleground for defining the limits of executive power in the United States”, concluded Sharma.
