Rubio Declares Most Immigration Actions Exempt from Federal Notice-and-Comment Requirements

On Friday, March 14, the Federal Register published a February 21, 2025, determination from Secretary of State Marco Rubio that declared that “all efforts, conducted by any agency” of the federal government to “control the status, entry, and exit of people … across the borders of the United States” would not be subject to the notice-and-comment requirements of the Administrative Procedure Act (APA). This exemption would likely be applied to most immigration rule changes, including those that impact immigration benefit eligibility and processing.

The APA generally requires federal agencies to follow notice-and-comment procedures when issuing substantive rules, or agency actions that create, modify, or eliminate legal rights or obligations. These procedures require agencies to first publish notice of their proposed changes in the Federal Register and invite comments on such changes from the public, typically for at least 30-60 days. Agencies must then publish their response to all relevant comments before they can finalize the rule.

Secretary of State Rubio has declared that “all efforts, conducted by any agency” of the federal government to “control the status, entry, and exit of people … across the borders of the United States” would not be subject to the notice-and-comment requirements of the Administrative Procedure Act.

A high volume of comment submissions, however, can significantly impede a federal agency’s ability to issue a new rule without a showing of “good cause” or an urgent need for expedited rulemaking procedures. It is not uncommon for agencies to receive thousands of comments on a controversial proposal. For example, in 2018, the U.S. Department of Homeland Security (DHS) received over 266,000 comments on its “Inadmissibility on Public Charge Grounds” notice of proposed rulemaking.

The APA, however, exempts “military or foreign affairs functions of the United States” from the notice-and-comment rulemaking process entirely. Rubio cited President Trump’s executive order (EO) 14150, titled “America First Policy Directive to the Secretary of State”, as impetus for his determination. The EO directed him to “place our core national interests as the guiding mission of American foreign policy, and always put America and American citizens first”.

Using the EO as a guide, Rubio determined that marshalling “all available resources and authorities” to securing American’s borders and guarding U.S. citizens from threats related to “foreign spies, contraband, and harmful materials … as well as unchecked mass migration, narcotics trafficking, human smuggling and trafficking, and other destabilizing or unlawful activities, including the flow of dangerous drugs, weapons, and technology” involve “[e]liminating or mitigating these threats” via “visa policies, export control enforcement policies and practices and other foreign affairs functions”.

Rubio disclaimed, however, that the “scope of a foreign affairs function of the United States is much broader” than those authorities performed by the Department of State. It is, of course, true that DHS, the Department of Labor, the Department of Justice, and the Department of Health and Human Services all advance policies that impact the “status, entry, and exit of people … across the borders of the United States”.

The State Department has historically claimed that certain immigration policies it promulgates are exempt from the notice-and-comment procedures. As recently as December 2024, the Biden administration amended what is known as the Exchange Visitors Skills List, the list of countries designated by the secretary of State that is used to determine whether an individual who has been admitted to the United States as a J nonimmigrant exchange visitor is subject to the two-year foreign resident requirement under section 212(e) of the INA, without engaging in the notice-and-comment process.

The State Department, in the Federal Register notice for the Exchange Visitor Skills List update, claimed that it foresaw “definitely undesirable international consequences”, were it to engage in notice-and-comment rulemaking, which requires the government to make public the language of the changes it is considering implementing. The department articulated a rationale in its Federal Register notice for applying the foreign affairs exemption, explaining that, “For example, if a foreign country expresses dissatisfaction with the Skills List designations, requiring the Department to air this disagreement in a public forum could have larger implications for foreign relations between the United States and that other country.”

This is the first time, however, that the secretary of State is preemptively exempting all actions across the federal government, including those made by other federal agencies, that “control the status, entry, and exit of people,” — i.e., most immigration policies. While it may appear that Rubio, as secretary of State, is asserting authority over rulemaking functions statutorily assigned to other cabinet departments, a foreign affairs function declaration is arguably most appropriate coming from the secretary of State.

This is especially true when the secretary’s determination is derived from a presidential executive order, as Rubio claimed in his notice. Article II of the U.S. Constitution, of course, has been interpreted to assign the president with primary authority over foreign affairs, with the U.S. Supreme Court, in United States v. Curtiss-Wright Export Corp., emphasizing the long-held constitutional principle that the president is the “sole organ of the nation” in foreign relations.

Will Rubio’s Determination Stand up in Court?

Whether any rule that impacts the “status, entry, and exit of people … across the borders of the United States” will be considered a “foreign affairs function” simply because the president of the United States has ordered the secretary of State to “place our core national interests as the guiding mission of American foreign policy” is not clear, but is unlikely to be seen that way by courts in all federal circuits.

In some cases, federal courts may consider invocation of this exception pretextual, despite the undeniable nexus immigration policies have to foreign affairs — especially during a Trump administration. As CIS Executive Director Mark Krikorian recently wrote, “Immigration stands at the intersection of international and domestic concerns. … Traditionally, immigration concerns have taken a back seat to questions of geopolitics. But Rubio’s comment, and the Trump administration policies that it reflects, show clearly that this is no longer the case.”

President Trump, during both his first administration and the current one, has not been hesitant to couple immigration issues with international trade negotiations. His tariff policies, for instance, have had a direct impact on both Canada’s and Mexico’s willingness to take measures to crack down on border crossings and may alter both countries’ inclination to negotiate with the United States on other matters in the future. More generally, international trade agreements have sometimes included provisions for temporary work visas (e.g., TN visas for Canadians and Mexican nationals). It also does not take much creativity to imagine how new H-1B rules could be used to influence agreements between the United States and countries like India and China.

Moreover, the nexus between immigration policy and foreign affairs has been used by multiple administrations to justify presidents’ exercise of deferred enforced departure (DED) for nationals of specified countries. Aliens covered by DED are not subject to removal from the United States for a designated period and may obtain work authorization, despite directly conflicting with federal immigration law provisions.

Federal courts, however, have typically interpreted the foreign affairs function exception to the APA narrowly and may be unlikely to accept an agency’s application of the “foreign affairs function” exception without the showing of an articulable foreign affairs consequence or interest. In 1980, for example, the Ninth Circuit held that “The foreign affairs exception would become distended if applied to INS actions generally, even though immigration matters typically implicate foreign affairs.”

The D.C. Circuit also instructs that the exceptions to the APA’s notice-and-comment requirements be “narrowly construed” and “reluctantly countenanced”, despite their “potentially broad sweep”. In this circuit, to be covered by the foreign affairs function exception, “a rule must clearly and directly involve activities or actions characteristic to the conduct of international relations”.

Other circuits have adopted a stricter test. For example, the Federal, Second, Ninth, and Eleventh Circuits only permit the exception to be invoked when engaging in notice-and-comment procedures “would provide definitely undesirable international consequences”. Whether this standard could be upheld by a higher court, though, is uncertain.

First, this is at odds with the president’s new EO that directs the secretary to prioritize “national” or domestic interests in foreign policy, rather than international. Again, Article II of the Constitution vests significant foreign affairs powers with the executive.

Second, nothing in the language of the statute requires “undesirable” consequences, per se. It may also render another exception to the APA’s notice-and-comment rulemaking procedures, the “good cause” exception, superfluous. This exception applies “when the agency for good cause finds … that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest”. As a district court in the D.C. Circuit noted when rejecting this standard, if “notice-and-comment rulemaking would ‘clearly provide definitely undesirable international consequences’ then this so-called ‘good cause’ exception would be available”.

Finally, courts may not even be persuaded that skipping the APA’s notice-and-comment requirements will fulfill President Trump’s order to make “core national interests the guiding mission of foreign policy”. By refusing to accept and respond to comments from the public, Rubio’s determination will inevitably be denying domestic stakeholders the ability to express their concerns (consideration of which the agency may have unknowingly omitted) on such policies.

Notice-and-comment procedures — which give the public the ability to participate meaningfully in the rulemaking process — were designed specifically to ensure agencies engage in reasoned decision-making and have considered relevant costs and considerations before issuing rules that have the force and effect of law. This process gives the agency the ability to amend their rulemaking proposals before they impact domestic stakeholders — which may actually serve — not undermine — national interests.

Nevertheless, the federal government will likely succeed in applying this exception to a good number of immigration-related actions, especially if this administration continues to use international agreements as leverage points to accomplish its immigration priorities and the rules it promulgates are related to these discussions. It will be prudent for the agencies, however, to articulate a nexus between a given rule and an international consequence to reduce litigation risk. A detrimental court ruling could certainly obstruct and delay the administration’s ability to issue a rule more significantly than engaging in a notice-and-comment rulemaking process would.