Rubio Declares Immigration Regulations Exempt From Public Notice

Regulations governing visa policies and other immigration matters fall under a “foreign affairs” exception to the Administrative Procedure Act, Secretary of State Marco Rubio announced Thursday, potentially allowing for them to bypass a public and notice comment process for new rulemaking.

Most federal regulations are subject to a public notice period that can delay their effective date, but agencies have increasingly claimed the foreign affairs exception.

Rubio determined “that all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States, constitute a foreign affairs function under the Administrative Procedure Act, 5 U.S.C. 553, 554,” according to a notice scheduled for publication in the Federal Register Friday.

The State Department has typically claimed its own rulemaking is exempt from APA requirements. It cited that foreign affairs function when it issued an update of the Exchange Visitor Skills List last year without a public comment period. That update dropped a two-year home residency requirement for students and researchers from several countries after completing an exchange program in the US.

A Department of Homeland Security regulatory overhaul of the H-1B visa program, meanwhile, was finalized the same month more than a year after the release of draft regulations. DHS received more than 1,200 comments on the rule.

Public notice and comment gives interested parties a chance to weigh in on draft regulations, typically for a period of 30-60 days. For rules subject to that process, federal agencies are required to consider comments and respond to issues they raise in final regulations. Failing to adhere to those requirements can lead to a regulation later being tossed by a court.

The State Department notice comes after the Department of Health and Human Services last month announced it would no longer follow notice-and-comment procedure for “matters relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” That decision brings HHS in alignment with the APA, the agency said. But the decision drew outrage from open government advocates who said it would block public participation in HHS decision making.

Rubio’s notice, which was dated Feb. 21, cited President Donald Trump’s directive in an executive order “to place our core national interests as the guiding mission of American foreign policy, and always put America and American citizens first.”