Published by: The Times of India - March 26, 2025
Quotes and Excerpts from Rajiv in the article:
No requirement for notice to comment:
"As a practical matter, this foreign-affairs determination attempts to create a regulatory fast track for the Trump administration's immigration agenda. Note that courts have historically been sceptical of broad applications of the foreign affairs exception, particularly in immigration contexts where the connection to diplomatic functions is tenuous. While agencies such as Department of State (DOS), Department of Homeland Security (DHS), USCIS, Department of Labour (DOL) and others, could now claim authority to revamp the H-1B program or eliminate H-4 EAD (work permit given to eligible spouses of H-1B workers) without public input, this approach contradicts decades of administrative law precedent that has required agencies to show specific, definite undesirable international consequences before invoking this exception. 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 can be foreseen?
Khanna said, "Be mindful that this foreign affairs determination creates an unprecedented situation. 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. Now, the first time these stakeholders might learn about a new H-1B or F-1 policy (governing international students), when it is published as a final rule and already in effect. For Indian IT companies with significant US operations and the nearly 75% of H-1B visa holders who are Indian nationals, this represents a dramatic reduction in procedural protections and predictability."
According to Khanna, "The government's procedural manoeuvre, paired 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. For the Indian diaspora, which has traditionally relied on both administrative advocacy and litigation to protect its interests, this combination is particularly concerning. Companies and individuals should prepare for potential disruptions by developing contingency plans and exploring alternative visa categories or markets."
Can this notice issued by the Department of State itself be challenged?
“The courts remain the ultimate arbiter of the limits of executive authority, and this determination pushes those boundaries to their extreme. In my assessment, there are strong grounds to challenge this notification based on administrative law precedent that has consistently rejected expansive interpretations of APA exceptions,” states Khanna.
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